Yesterday, I posted on the inadvertent production of privileged texts and other matter in the Alex Jones defamation trial.  In the day that’s passed, the Austin, Texas jury returned a compensatory damages verdict of $4.1 million dollars, and minutes ago, assessed punitive damages of $45.2 million.  More has come to light overnight respecting the lawyers’ errors, confirming what I’d only been able to speculate about yesterday.  Now, I want to add a point about features of Texas law that very well could determine if there will be a mistrial or a new trial on appeal.

In yesterday’s post, I explored the Texas rules of procedure and evidence permitting a party who unwittingly produces privileged data to “snap back” that evidence by belatedly asserting its privileged character and demanding return (Tex. R. Civ. P. Rule 193.3 and Tex. R. Evid. Rule 511).  I also touched on counsel’s ethical duty to notify an opponent who has mistakenly supplied material relating to a lawyer’s representation of a client (ABA Model Rule of Professional Conduct 4.4b).

Concluding yesterday’s post, I posed questions:

• Was a new link to a collection scrubbed of privileged content ever supplied?

• Why didn’t defense counsel promptly object at trial and protect the record?  

• Will we next need to discuss the crime/fraud exception to attorney-client privilege?

One of these now has an answer: Based on remarks of counsel at a hearing on Defendants’ Emergency Motion for Enforcement of Protective Order dated December 2, 2021 (filed August 4, 2022), the updated link promised was never supplied.  Further, no subsequent assertions of privilege or other action pursuant to Tex. R. Civ. P. Rule 193.3 were made by Defendants.  It appears the ball was dropped, prompting one to wonder whether defense counsel hoped he would wake up and find it was a bad dream (like–DATED REFERENCE WARNING–Pam seeing Bobby Ewing in the shower).  In the run up to a high-profile trial, it’s more likely it just slipped through the cracks.

Since defense counsel Andino Reynal clearly didn’t expect the text messages to emerge at trial, it remains a conundrum why defense counsel failed to object when they came up and were shown to the jury.  Take it from someone who spent decades trying cases in Texas courts and another decade teaching electronic evidence at Texas’ premier law school (whaddya mean “which one?“), when improper evidence that hurts your client is mentioned to a jury panel, let alone proffered for them to see, counsel must leap to his feet and assert a prompt, clear objection.  There are exceptions to this, but any trial lawyer worth his salt understands the duty to protect the record by timely objection.  Even if you’re loath to appear obstructionist by objecting, you nevertheless rise and say, “Objection.  May we approach, Your Honor?”  Then, quietly make your record at the bench.

This is rooky stuff: You protect the record by timely objection or waive grounds for that objection.

While I’m pointing fingers, I’m wondering why on Earth plaintiffs’ counsel Mark Bankston thought he could broach allegations of discovery misconduct in front of a Texas jury?!? 

This point hasn’t come up in any reporting I’ve seen but the Texas Supreme Court takes a dim view of litigants airing the dirty linen of discovery abuse to jury panels.  Texas’ approach is in marked contrast to Federal practice where judges let juries hear questions of spoliation. In Texas, as a matter of law, the trial judge determines whether spoliation has occurred and what sanctions to impose.  Evidence of spoliating conduct is inadmissible in Texas. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)

An argument can be made that spoliation is one thing and telling the jury that opposing counsel “messed up” and supplied documents meant to stay hidden is something else.  Perhaps; but, I’ll bet my boots there was a pretrial order on a Motion in Limine barring mention of discovery disputes without first seeking leave of court.  Too, the Texas Supreme Court’s concern that juries may be prejudiced by discussion of matters reserved exclusively to the Court’s determination would seem to hold true for telling juries that opposing counsel “messed up.” 

There’s been a lot of digital ink devoted to lambasting defense counsel for his mistakes, but in his fervent (and understandable) eagerness to tag Alex Jones, it remains to be seen if Plaintiffs’ counsel overstepped and the whole damages phase must be retried. If so, UGH, just UGH!

P.S. I just noticed that plaintiffs’ counsel practices with a Houston firm with “Ball” in its name. That’s not me nor anyone in my family. No connection whatsoever.

I reserve this space for topics I’ve mulled over carefully in hopes that, even if I’m late to the party, at least I’ll be properly dressed. But yesterday, the media covering the Alex Jones defamation damages trial in Austin lit up with the news that Jones’ counsel inadvertently produced privileged mobile text messages and failed to seek their return in time to prevent waiver of privilege. The “inadvertently” produced messages reveal that (SPOILER ALERT!) Jones is a discovery-obstructing, lying scumbag.

That’s not political commentary; that’s the key fact finding of the Court during the liability phase of the case (“scumbag” is synopsis, implicit but unstated by Her Honor).  Jones’ discovery misconduct was so egregious, it compelled the judge to enter a default judgment on liability.  Hence, the ongoing case determines only compensatory and punitive damages.

Wow! Seamy Texas headlines in my wheelhouse of e-discovery and digital evidence! Got to love that! I write (hastily) to explore the applicable Texas rules as well as to parse—admittedly on skeletal information–what seems to have transpired and what it signifies.

To begin, Alex Jones is a 48-year-old, right-wing conspiracy theorist broadcasting rants and raves to millions of listeners who get off on the garbage he spews. Jones and his InfoWars entities were sued for defamation arising from such vile acts as claiming that the murder of 20 six- and seven-year-old children at Sandy Hook Elementary School was a hoax and “false flag.” So, he’s a horrible person, but the legal and factual issues don’t change because a party is a horrible person; horrible people are why we need courts and lawyers.

On August 3, 2022, Jones was on the stand under cross-examination when plaintiffs’ lawyer Mark Bankston asked:

“Mr. Jones, did you know that 12 days ago, your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you’ve sent for the past two years?  And when informed, did not take any steps to identify it as privileged or protect it any way, and as of two days ago, it fell free and clear into my possession and that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook.  Did you know that?”

Jones previously testified he’d searched his phone for texts about Sandy Hook and found none.

Consider five elements of the question, because all go to the question of whether privileged communications produced in error may be used by counsel:

1. “12 days ago”
2. “your attorneys messed up”
3. “sent me…every text message you’ve sent for the past two years.”
4. “when informed, did not take any steps to identify it as privileged or protect it any way”
5. “as of two days ago, it fell free and clear into my possession….”

Hearing this, any lawyer’s ears will perk up, certainly any e-discovery lawyer’s. Diligent, competent lawyers don’t ‘mess up” by producing every text message irrespective of relevance, responsiveness and privilege! That could prompt a waiver of privilege–every lawyer’s nightmare!

Unless the lawyer practices in the Great State of Texas, a jurisdiction with strong safeguards against unwitting waiver of privilege by inadvertent production. Texas Rule of Civil Procedure 193.3(d) offers a get-out-of-jail-free card that’s easy to play:

Tex. R. Civ. P. Rule 193.3 Asserting a Privilege

…

d) Privilege not waived by production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if – within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made – the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, any party who has obtained the specific material or information must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.

Aha! So THAT’S what all the twelve days/ten days/two days stuff is about!

Jones’ counsel had ten days from his discovery that privileged information had been unintentionally produced to amend the response to assert a privilege and demand its return. In Texas, we call that “snap-back” and in federal court, it’s what Rule 502 of the Federal Rules of Evidence was intended to fix.

Texas has its own evidence rule on point, Rule 511(b)(2):

Tex. R. Evid. Rule 511: Waiver by Voluntary Disclosure

…

(b) Lawyer-Client Privilege and Work Product; Limitations on Waiver

…

(2) Inadvertent Disclosure in State Civil Proceedings. When made in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).

Pulling it together:

At some point on or before Friday, July 22, 2022, defense counsel supplemented discovery responses in such a way that two years of Jones’ cell phone messages were produced.  How?  No clue!    Perhaps by placing it into a production “drop box” repository hosted online?  The method of production doesn’t matter, and the form of production is unhelpfully characterized as “digital;” even the time of production isn’t critical.  What matters most is when did defense counsel discover privileged information was produced and what did he do about it?

I expect the July 22 date refers to a communication from plaintiff’s counsel informing defense counsel that privileged or confidential material may have been inadvertently produced. 

I expect it because ABA Model Rule of Professional Conduct 4.4(b) provides:

“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”

Texas’ disciplinary rules don’t mirror ABA Model Rule 4.4(b), but smart, ethical counsel will supply the notice if for no other reason than failing to do so puts the lawyer receiving the information at risk of unpleasant outcomes, including being booted from the case by disqualification.

Once notified, the snap-back provision kicked in and—tick…tick…tick—defense counsel had ten days to “[amend] the response, identifying the material or information produced and stating the privilege asserted.”  Again, Texas liberally protects against unwitting privilege waiver, so all defense counsel had to do was write something, anything, akin to “the texts we supplied contain privileged attorney-client communications and non-responsive confidential information.  Return them now, destroy any copies and do not use of share any information they hold.”  It wouldn’t have required much specificity since plaintiffs’ counsel knew what he had and believed his opponents counsel “messed up.”  All it would have taken was a peep of timely objection. Yet, as plaintiffs’ counsel put it in court, defense counsel “did not take any steps to identify it as privileged or protect it any way.”

But, literally just as I’ve written the preceding, my dear friend, Mary Mack, the Empress of E-Discovery, sent a text indicating Plaintiffs’ counsel Bankston e-mailed defense counsel Reynal shortly before midnight on Friday, 7/22 and, discussed the production stating: “My assumption is now that you did not intend to send us this? Let me know if I am correct.”

The following day, July 23, 2022, defense counsel F. Andino Reynal replied:

“Thank you Mark.  There appears to have been a mistake in the file transfer…. Please disregard the link and I will work on resending.  Andino”

So, the plot thickens! It’s not clear that defense counsel “did not take any steps to identify it as privileged or protect it any way.” Still, if what I’ve related here is all there was in term of exchanges (and it shouldn’t be), plaintiffs’ counsel is betting heavily that specific assertions of privilege are required for snap back to apply and that citing a “mistake” and asking plaintiffs to “disregard the link” is insufficient to forestall waiver in a state that bends over backwards to protect attorneys from the consequences of inadvertent waiver.

Gutsy or unprofessional? Your call. Was a new link to a collection scrubbed of privileged content ever supplied? Why didn’t defense counsel promptly object at trial and protect the record? Will we next need to discuss the crime/fraud exception to attorney-client privilege? Any way you cut it, this mess promises to be a case study in discovery abuse and lawyer misconduct. Stay tuned!

UPDATE: Here’s a motion filed by Jones on August 4, 2022:

This post isn’t about forensics or e-discovery, but you can hardly be expected to focus on ESI if you’re sweltering in a hot house!  Having lived most of my years in the balmy American South and Southwest, I regard air conditioning as essential; yet like water and electricity, air conditioning garners little thought until it stops working.  Recently, I explained the mechanics of air conditioning to a curious friend, and it made me see that grasping the fundamentals of air conditioning is more than just a useful academic exercise; it’s a skill that can spare you discomfort and even save significant sums.  If nothing else, you’ll understand what an A/C repair person does and maybe recognize when you’re being conned. 

I handle much of my own A/C maintenance and repair although I deal solely with the electrical components and leave the pressurized parts to professionals.  It’s not that pressurized components are terribly difficult to service, but doing so carries additional risks to person, property and the environment, and requires access to specialized tools and the correct formulation of refrigerant gas, the latter sold only to licensed service personnel.  Most often, “fixing” my central air conditioning system entails no more than blowing out drain lines, cleaning coils to improve thermal transfer and occasionally replacing a starter capacitor or contactor relay.  None of that is rocket science, but still, undertake electrical repair only if you know how to do so in safety!

The ABCs of A/C

Let’s spend a minute on thermodynamics and put names to the major components of a cooling system.

Air conditioning is extracting heat from interior air and transferring (“exchanging”) that heat to exterior air.  In so doing, moisture in the interior air condenses on cold surfaces lowering interior humidity, helping the interior to feel still cooler because our bodies cool better when air is drier.  The heat exchange process entails a pair of separate, connected coils of tubing over which a pair of electric fans circulate air.  The cold coil inside the house is called the “Evaporator” and the hot one outside is called the “Condenser.”  In the U.S., these coils contain a hydrofluorocarbon (HFC) gas serving as a “Refrigerant.”  For many years, the most common refrigerant was branded as Freon®, so most still refer to air conditioning refrigerants that way.

Refrigerants are gases at normal pressures and temperatures but become liquids when compressed.  If you’ve ever sprayed compressed air to, e.g., clean computer components, you may have noticed how the nozzle where the compressed air emerges gets quite cold or even freezes.  The process where a compressed liquid expands to a vapor or where a vapor becomes a liquid when pressurized is called “Phase Transition.”  Think of compressing a gas to liquid as pushing heat out and its expansion from liquid to gas as pulling heat in.

The compression and expansion of the liquid/gas refrigerant in the coils and connective tubing is the work of two more components: a “Compressor” and an “Expansion Valve.”  The compressor receives the expanded gaseous refrigerant and pressurizes it into a liquid state liberating its heat energy and pushing it through the condenser coils to carry that heat away.  In central air conditioners, the compressor sits outside the home, typically surrounded by the condenser coils and surmounted by a large fan circulating air over the hot condenser coils to disperse that heat to outside air.  The condenser coils travel through many thin metal fins serving as heat sinks, increasing the surface area over which the fan blows air to better disperse heat.

As the cooler, compressed liquid refrigerant leaves the condenser, it travels through copper tubing and enters the evaporator coil (usually located in an attic, basement or utility space) via the expansion valve regulating the flow of expanding refrigerant as it vaporizes.  This expansion chills the evaporator coil and a second blower fan circulates filtered air over the cold evaporator coil drawing heat from the interior air.  The warm, humid air traversing the evaporator coil leaves water on the coil like beads of sweat on a glass of iced tea—falling into a collection pan and draining to the sanitary system or outside.

Finally, and familiarly, the operation of the fans and compressor is controlled by an adjustable, temperature-sensing switch called the “Thermostat.”

Here’s a helpful infographic courtesy of the U.S. Department of Energy:

What Can Go Wrong?

If your A/C system fails because it’s lost refrigerant, that’s your worst-case scenario.  Apart from a repairable puncture of a refrigerant line by a nail or screw during construction or another freak occurrence, refrigerant leaks typically stem from deterioration of the coils and tubing as a result of corrosion.  When that occurs, your system is dead or dying and only a professional can help you. Too, rarely can they do much in the way of repairs short of replacing leaking components and recharging the system at great cost.

But coolant loss is not the most common reason A/C systems stop working, and you should be certain all quick, cheap fixes are considered before letting anyone sell you a replacement coil or system. 

In my experience living in communities where 100° Fahrenheit (38°C) temperatures are commonplace, central air conditioners most often stop cooling properly because:

1. A clogged drain line trips a float switch;
2. A starter capacitor has dried up; or
3. A dirty coil has caused a thermal limit switch to trip.

Of course, there are other things that go wrong, and I respect you enough, Dear Reader, to elide over causes like the circuit breaker has tripped or the thermostat is set to heat.  In medicine, there’s a wonderful diagnostic metaphor that counsels, “When you hear hoofbeats, think horses, not zebras.”  Here, too, consider the most common problems before deciding that the compressor has shorted out or the Freon in your system is now parked somewhere over the North Pole.

Clogged Drain Line: All that water that drips from the cold evaporator coil has got to go somewhere and most of us prefer it not come down through the ceiling.  So, there are usually two drip pans below the evaporator.  The first, inside the A/C unit, tends to emerge via a short length of PVC drain line connected to a float switch, an aptly-named electrical device that turns off the A/C unit when a clogged drain line causes water to back up and “float” a switch to break a circuit.  The second is an external drain pan that serves as a failsafe when the main drain clogs AND the float switch fails.  This external pan should remain dry at all times, so it’s being dry signifies nothing respecting the primary drain line and float switch.  Clogged drain lines tend to manifest as the frequent cycling of the A/C such that the system doesn’t run long enough to cool the house.  In my homes, clogged lines tended to be caused by debris, mold or insects that blocked the line.  I resolve this by locating the standing riser (a short, often-capped, vertical piece of PVC in the drain line near where it exits from the inside air handler) and blowing or vacuuming it out, then flushing the line with vinegar or a diluted bleach solution.  I sometimes clear the line by blowing into the tubing using just my lung power, but I don’t recommend it as safe or satisfying.

Start Capacitor Failure: We all know how hard it is to move a static load (like a broken down automobile) and how much easier it becomes once it gets moving and you have the benefit of momentum.  When an A/C compressor or fan motor starts, it lacks momentum and must draw a heavy load of electrical current to get going.  A/C compressors and fans employ a start capacitor holding an extra “kick” of current to get things spinning without tripping a circuit breaker.  Over time, and particularly in very hot weather, capacitors lose their ability to deliver the surge of power needed to start the compressor or fan motor.  To the uninitiated, a bad capacitor presents just like a failed compressor, except that a replacement capacitor costs a few dollars whereas replacing a compressor runs to thousands of dollars.

Swapping out a bad start capacitor is dead simple and dirt cheap, but it requires that you take essential safety precautions including turning off power at the circuit breaker AND physically removing the A/C safety disconnect switch located at the condenser unit.  Also, be careful to note that the capacitor being replaced may store enough power to deliver a jolt, so don’t touch or short its terminals.  Often an aging capacitor and compressor can be rejuvenated by installation of a so-called “hard start kit,” a $10.00-$15.00 device that piggybacks on the existing capacitor and ensures sufficient start current to kick over a reluctant compressor.

Rather than supply the step-by-step of a capacitor replacement or hard start kit installation here, permit me to point you to countless Youtube videos on the topic.  The DIY parts are readily available on Amazon and again, safety first!

Dirty Coils: Coils are heat exchangers and anything that impedes thermal transfer, including dust, dirt, debris, corrosion on the coils, serves to diminish the system’s ability to shed heat and cool efficiently.  If the system can’t shed heat, it may overheat and trip a thermal limit switch shutting the compressor down  or causing it to “short cycle” erratically.  Accordingly, it’s important to only run your A/C system with air filters in place and to periodically hose off dirt and debris from the fins and coils of the exterior condenser unit.  For most systems, an annual rinse should suffice.

With luck, the fixes outlined above will ensure you keep cool and spare you needless service calls and expense.

I use PowerPoint in my law practice more often than Microsoft Word.  Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand.  PowerPoint isn’t a word processor; it’s a visual presentation tool.  You can fill slides with text as you might a word-processed document, but when you do, you’re killing the power of PowerPoint.

Text documents speak for themselves.  Presentations benefit from a narrator, i.e., you sharing your message.  An effective presentation supports your message.  It’s your ally and must not be your competitor.  The human brain cannot simultaneously read text and listen to words because both tasks draw on the same cognitive capability.  When we ask an audience to read text and hear words, text doesn’t reinforce the words; it competes with them.  Our language centers are overwhelmed trying to process both.  The result is a breakdown in comprehension and retention.  That breakdown is worst when a presentation proceeds at the brisk pace required to hold the attention of younger listeners.  And we need our audience’s attention! Attention is the hardest thing to grab and hang onto in this time of ubiquitous screens and constant connection.

We’ve all experienced someone talking to us as we try to read a document.  It’s rude, and makes it tough to follow the document or the conversation.  When handing a document to a judge, savvy advocates know to shut up and let the document do the talking.

Why then, do so many fine advocates insist on reading the text on their slides to the audience?

A savvy presenter knows not to speak when listeners are reading slides and limits the amount of text onscreen.  An effective presentation is Show and Tell, not Speak and Spell.  An effective presentation doesn’t stand alone; it needs a narrative.

This is heresy.  Most presenters build slide decks to suffice as handouts (NO!!) and present them by reading aloud that text which the listeners have already read or are struggling to plow through.  This is Death by PowerPoint, and it’s the reason so many presentations are far less effective and memorable than they could be.

PowerPoint in Trial?  Not So Much.

When I started using PowerPoint thirty-odd years ago, it was hard and costly to use visual persuasion in court.  Courtrooms weren’t well-equipped for presentation and old-school judges took a dim view of innovative techniques they worried might slow proceedings or inject error.  But I used them anyway, and greatly benefited.  Today, going to trial or a key hearing without a compelling visual presentation is going underprepared.  Judges like good visuals, and jurors need them.  Today, the presentation tools are right at hand in modern courtrooms.  Yet, even as we focus on visual presentation in court, the reality is that only a handful of disputes today are decided in courtrooms.  Most are resolved in settings unconstrained by the rules of evidence, making it more important that your presentation be engaging and informative than evidentiary.  Accordingly, it’s fine to use, say, stock photography, sound and even music, if the effect will be to get and hold focus so you can instruct and persuade.  Cases settle because one side fears an outcome more than the other.  When you are seeking to persuade an opponent to settle, it’s sensible to use and underscore emotion.  Few things do that as well as images, sounds and music.

As my practice gravitated from trial to teaching, testifying and consulting, I am less constrained by strict rules of evidence in framing my presentations.  I use richer media and more creative and provocative imagery, and I strive to use visual persuasion everywhere.  Whether you are presenting in a courtroom or in more free-wheeling settings, you need never eschew visual persuasion.  If you follow a few simple rules, it will always improve comprehension and retention of your message.

1. Use Pictures to Persuade: Persuasion is telling a story the listener takes as true.  When you tell that story in pictures, you free the speech center of the listener’s brain to hear your words, and you empower the visual cortex to forge connections between the story and the memories and emotions conjured up by the images.  Instead of fighting to reconcile the written and spoken word, the visual and language cortices pull together, each reinforcing the other.  No doubt there is a pithy biochemical explanation for why this works; but all we need know is that it works.  It works really, really well.
2. Follow the Five Second Rule: I won’t use a slide that takes more than a few seconds to apprehend.  If you must use text to make a point, never use more text than an average reader can read and understand in five seconds, tops.  That doesn’t mean spreading loads of text over many slides and clicking through like mad.  Make the point verbally, as narrator, at your own pace.  Text on the slide merely anchors a point and provides essential context.  Don’t ask it to do more.  Using just an image or a single word injects tension and prompt listeners to forge their own connections between the visual and the message.  The connections built of a listener’s curiosity are sturdy.  We better retain what we think through than what we are told.  If you can make the point with no text at all, do it.  The words come from you.  Use the screen for imagery.
   
3. Fill the Slide: Don’t be afraid to give over the entire slide to your image.  Too many presenters leave room for text even when there’s little or no text.  We are so conditioned to treat images as adjuncts to the written word those images too often get added as little rectangles floating in a sea of dead space.  Don’t do it!  Use images of sufficient resolution that can be stretched to fill the screen without pixilation.  I’m fond of using solid areas of images for whatever bit of text I include.  Feel free to get creative with the image, using just a section or changing its orientation.  I sometimes add subtle movement to images using the Morph transition or motion path animation or a grow/shrink enhancement to take advantage of the fact that our primal survival senses are intensely attuned to movement.  It draws our attention, even when the movement is almost imperceptible.
   
4. PowerPoint is not a Teleprompter: Presenters lard their slides with tons of text when they’re afraid they won’t otherwise remember what they want to say.  That’s lazy, but it’s also foolish, because it guarantees that your message won’t come across as clearly or stick as firmly.  Trust me: If you know your stuff, it won’t take more than one well-chosen image or word to trigger your recollection of everything you want to say.  If you need notes, use them or use the Speaker Notes feature of PowerPoint; but, be warned:  Audiences have a low tolerance for presenters reading to them.  While it’s acceptable to read a sentence or two, most people would rather hear your narration in a relaxed, conversational way.  Nothing belies your competence quite like reading a presentation.
   
5. Bullet Points Don’t Wrap: I despise bullet points and strive not to use them. But, when I must use a bulleted list, I follow the ironclad rule that bullet points don’t wrap.  No “buts.”  No “what ifs?”  Never!  If any item in a bulleted list is so long that it won’t fit on a single line, it’s not a bullet point, and it’s got to go.
   
6. Make It Big; Make It Flow: The presentation viewers can’t read is no better than the speech they can’t hear.  Never put text on a slide that you expect viewers to read unless it at least 24 points in size.  Bigger is better.  Don’t fudge on this.  You should be able to read the text on a slide when in slide sorter mode. 

A slide presentation doesn’t have to “feel” like a PowerPoint.  I’m flattered when people come up and ask me what program I used to present.  They’re shocked when I respond, “just PowerPoint.”  Use transitions and backgrounds to smooth the flow between slides and eliminate jarring segues.  A simple fade is sufficient; but I’m a huge fan of the Morph transition in PowerPoint that enables objects, words and text to re-assemble before the viewers’ eyes.  It’s slick; so, use “slick” with care and subtlety.  The transition should help the flow, not interrupt it.  Morph is also terrific for enlarging sections of images or documents.  It handles all of the calculations required for smoothly animating between slides called “tweening.”

But, Wait!  There’s More: PowerPoint does much more in my practice than just serve as a presentation tool.  I use its powerful screen capture and video editing tools to obtain and tweak imagery.  I use it to fashion sophisticated animations, and its powerful suite of drawing and photo-manipulation tools support extensive customization of images.  The drawing tools are handy when I need to crop an image, remove a background or convert vector graphics to pictures.  It’s also a convenient, adaptable canvas to paste to when capturing screen shots.

Today, Doug Austin‘s splendid eDiscoveryToday blog featured O’Donnell/Salvatori Inc. v. Microsoft Corp., No. C20-882-MLP (W.D. Wash. Oct. 1, 2021), where a U.S. Magistrate sitting in Seattle opined on an issue I wrote about nine years ago (when there wasn’t a case to be found on the question): “Must a party produce all ESI retrieved from the use of negotiated search terms?” Magistrate Peterson wisely held that “a party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner.”

Because the issue remains contentious, I thought reprinting my long ago post and the associated practice tip (that would have kept the parties from tripping up) might be timely. Here it is (from March 22, 2013):

More than once, I’ve faced disputes stemming from diametrically different expectations concerning the use of keywords as a means to identify responsive ESI.  I don’t recall seeing a case on this; but, it wouldn’t surprise me if there was one.  If not, there soon will be because the issue is more common than one might imagine.

When requesting parties hammer out agreements on search terms to be run against the producing party’s ESI, sometimes the requesting party’s expectation is that any item responsive to the agreed-upon keywords (that is, any item that’s “hit”) must be produced unless withheld as privileged.  Put another way, the requesting party believes that, by agreeing to the use of a set of keywords as a proxy for attorney review of the entire potentially-responsive collection, and thereby relieving the producing party of the broader obligation to look at everything that may be responsive, those keywords define responsiveness per se, requiring production if not privileged.

Now I appreciate that some are reading that and getting hot under the collar.  You’re saying things like:

• “We always have the right to review items hit for responsiveness!”
• “It’s the Request for Production not the keyword hits that define the scope of e-discovery!”
• “Nothing in the Rules or the law obliges a party to produce non-responsive items!”
  [Expletives omitted]

Perhaps; but, there’s sufficient ambiguity surrounding the issue to prompt prudent counsel to address the point explicitly when negotiating keyword search protocols, and especially when drafting agreed orders memorializing search protocols.

To appreciate why expectations should be plainly stated, one need only look at the differing incentives that may prompt disparate expectations.

What is a producing party’s incentive to limit the scope of search to only a handful of queries and keywords?  Federal law requires a producing party to search all reasonably accessible sources of information that may hold responsive information and to identify those potentially responsive sources that won’t be searched.  That’s a pretty broad mandate; so, it’s no wonder producing parties seek to narrow the scope by securing agreements to use keyword queries.  Producing parties have tons of incentive to limit the scope of review to only items with keyword hits.  It eases their burden, trims their cost and affords requesting parties cover from later complaints about scope and methodology.

What is the requesting party’s incentive to limit an opponent’s scope of search to only those items with keyword hits?  Requesting parties might respond that their incentive is to insure that they get to see the items with hits so long as they are not privileged.  By swapping keyword culling for human review, requesting parties need not rely upon an untrusted opponent’s self-interested assessment of the material.  Instead, if it’s hit by the agreed-upon keywords, the item will be produced unless it’s claimed to be privileged; in which case the requesting party gets to see its privilege log entry.  That’s often the contemplated quid pro quo.

Both arguments have considerable merit; and, yes, you can be compelled to produce non-responsive items, if the agreement entered into between the parties is construed to create that obligation.  Some might argue that the agreement to use queries is an agreement to treat those queries as requests for production.  You don’t have to agree, dear reader; but, you’d be wise to plan for opponents (and judges) who think this way.

These are issues we need to pay attention to as we move closer to broader adoption of technology-assisted review.  We may be gravitating to a place where counsel’s countermanding a machine’s “objective” characterization of a document as responsive will be viewed with suspicion.  Responding parties see electronic culling as just an extension of counsel’s judgment; but, requesting parties often see electronic culling as an objective arbiter of responsiveness.  Face it: requesting parties believe that opponents hide documents.  TAR and keyword search may be embraced by requesting parties as a means to get hold of helpful documents that would not otherwise see the light of day.

Practice Tip:  If you enter into an agreement with the other side to use keywords and queries for search, be clear about expectations with respect to the disposition of items hit by queries.  Assuming the items aren’t privileged, are they deemed responsive because they met the criteria used for search or is the producing party permitted or obliged to further cull for responsiveness based on the operative Requests for Production?  You may think this is clear to the other side; but, don’t count on it.  Likewise, don’t assume the Court shares your interpretation of the protocol.  Just settling upon an agreed-upon list of queries may not be sufficient to insure a meeting of the minds.

I don’t often feature the work of others here; but sometimes I come across something that’s just so good, I can’t wait to sing its praises even as I wish it were something I’d written. One such gem is my great friend Tom O’Connor’s E-Discovery Checklist Manifesto. To give credit where due, Jeremy Greer and ACEDS honcho Michael Quartararo are authors as well, and their splendid work was underwritten by software seller, Digital WarRoom. As we all do, the Manifesto owes an acknowledged debt to the Electronic Discovery Reference Model (EDRM) where much of the same information can be found, but the Checklist Manifesto pulls the essentials together more simply and accessibly without leaving key points behind.

Because it emerged in the abyss of pandemic 2020, there’s a good chance you never heard mention of the E-Discovery Checklist Manifesto, so I hope you’ll like getting this heads up. It’s a quick read and worthy of being kept close at hand by newbies and old hands alike.