In the wee hours last evening, I received a question posed by Angela Bunting with Nuix down in Sydney, Australia.  Angela has such deep knowledge of e-discovery above and below the Equator that I was flattered to be queried by someone I’d go to for guidance.  It was a magnificent hypothetical question.

Angela posited a scenario where a producing party used emerging technolgies to either mechanically translate foreign language text to English or voice recordings to text.   In each instance, the quality of the resultant searchable text was poor, akin to bad OCR, and characterized by poor searchability due to malformed and missing words, misleading substitutions, etc.  As a  consequence of  this poor searchability, some documents that should have been produced were not and, to make matters worse, the requesting party had some of the omitted documents, so could readily demonstrate serious flaws in production.

Challenged by the requesting party, the producing party defends the use of the automated transcription or translation based on proportionality.  To do the same work any other way would have required use of costly and time-consuming manual labor.

So, there you have it: the automated approach was faster and cheaper, but also much less accurate and complete, resulting in a failure to produce non-privileged responsive material.

Angela asked what I believed the view of the courts might be in such a situation?  Would the Court require the work be done again using a more accurate, more expensive method? Might sanctions issue?  Would the Court excuse the failure based on proportionality?

Predicting what courts will do based on skeletal hypotheticals is a crap shoot.  Outcomes turn on the peculiar facts of each case and, when the issue is e-discovery, on counsels’ skill in acquainting the judge with the technical underpinnings.

But, I gave it a shot, and here’s my reply:

Continue reading →

This is a peculiar post in that it’s not an essay with a takeaway so much as a cerebral beach ball tossed to the crowd in hope that readers might enjoy batting it around (in comments below or over cocktails at the next e-discovery confab).  My proposition is that error, particularly inadvertent production occurring as a consequence of human carelessness, is a useful hedge against obstruction. Put another way, producing parties have become so adept at or inured to confounding e-discovery that a producing party’s mistakes are now our main–and perhaps only–means to uncover abuse.  I further posit that, although the shift to technology-assisted review is driven principally by cost savings, its incidental “benefit” to producing parties lies in its ability to stem inadvertent productions serving to reveal discovery abuse.

I concede that’s a cynical proposition, and I dearly wish it weren’t so dour; but, I’ve been litigating for 35 years, a third of that time dedicated to unspooling failed and abusive e-discovery efforts as Special Master.  Judges don’t ask me around to admire discovery efforts done right; I’m invited to disaster areas.  When I was counsel for injured parties in products liability and negligence matters, I lived the grind of forcing opponents to surrender information that helped my clients.  It was never easy; it can shake your faith.

Then and now, opponents fancifully characterized damaging information as privileged or decided that the author of the inculpatory e-mail or memo didn’t really mean what he or she plainly said.  Lawyers and clients will withhold damaging responsive data based on a tortured interpretation of a request or by the slender reed of a boilerplate objections: “Vague!” “Overbroad!” “Unduly burdensome!”  Lawyers have a remarkable capacity to rationalize failures to produce responsive material in discovery.  Continue reading →

At last week’s ILTACON in Washington, D.C., Beth Patterson, Chief Legal & Technology Services Officer for Allens in Sydney asked a panel why e-discovery service providers couldn’t standardize hash values so as to support identification and deduplication across products and collections.  If they did, you could use work from one matter in another.  If an e-mail is privileged in one case, there’s a good chance it’s privileged in another; so, wouldn’t it be splendid to be able to flag its counterparts to insure it doesn’t slip through without review?

Beth asked a great question, and one regrettably characterized by the panel as “a big technical challenge.”

One panelist got off on the right foot:  He said, “I’ve created artificial hashes in the past where what I had to do was aggregate and normalize metadata across different data sets to create a custom fingerprint to do that.”  But, he added, “that’s probably not defensible, and it’s also really cumbersome.”

Pressed by Beth, the panel pushed back.  “It’s because artificial hashes are kind of complicated,” one panelist offered, and not “a trivial technical problem.”  The panel questioned whether MD5 hashes were the appropriate standard or whether SHA-1 would be required, positing that cross-matter deduplication is “something that requires significant buy-in across a broad spectrum of people.”  Beth’s request was ultimately dismissed as “not an easy challenge” and one that would be confounded by “people, process and technology” and “the MD5 hash stuff.”

ILTACON is the rare venue where reasonably well-adjusted and -socialized people engage in lively discussions of such things.  It’s not just that ILTA folks understand the technology issues (“GEEKS!”), we’re passionate about them (“NERDS!”) and debate them respectfully as peers (“WUSSIES!”).

Beth’s idea deserved more credit than it got.  It really is a trivial technical problem, and one that could be resolved without much programming or politics. Continue reading →

It will come as no surprise to readers that I cleave to simple credos when it comes to litigation and e-discovery, viz.

• Most evidence today is digital.  It’s powerful, persuasive and pervasive.
• Being a lawyer is a privilege; our competence is the least clients deserve.
• Trial lawyers should be competent in matters of evidence and discovery.
• Competence in evidence entails competence in e-evidence.
• Competence in discovery entails competence in e-discovery.
• You’re not competent in e-evidence or e-discovery if you ignore the “e.”
• Knowing the law is one thing. Attorneys are smart and can learn a second thing.
• Attorneys trade in information;  that “second thing” should be information technology.

These are inarguable assertions in my mind; but, somehow, they remain controversial in practice.  The controversy endures because of the equally inarguable fact that those who set the standards for lawyer competence will never draw the circle of competence in such a way that they are left standing outside of the circle.  If it were important to know, they reason, they would already know it.  Discouraging.

But things will change, and when they do–when lawyers wake to the power of ESI–they will want materials that teach the “e,” not just the discovery.  They will want materials written by lawyers, for lawyers.

I’ve been laboring to contribute some of those materials for many years;  so long, in fact, that I’m chagrinned by how dated some of my early writings feel.  Back in 2009, I wrote a long essay–a primer really– for the Georgetown E-Discovery Institute, back when there was still a plenary technical topic covered during that storied event.  It was a primer on backup systems, which were still pretty central to high-profile e-discovery disputes back then.  Over the years, I’ve written lawyer-friendly technical primers on computer forensics, e-mail systems and databases to accompany other Tech Focus sessions at Georgetown, before the heresy of teaching information technology to lawyers at the Institute was recognized as being less promising than, say, teaching a pig to mambo. These primers, too, were getting long in the tooth and just felt, well, tired.

So, today, I spent the whole day extensively rewriting and updating the primer on backups. It’s now called the Luddite Lawyer’s Guide to Backup Systems, and I’m happy to put it back out there, fresh for 2016.  In addition to updating it to reflect the state-of-art in backup techniques and media, I added some nifty new stuff and graphics, like this colorful illustration to accompany my explanation of the difference between differential and incremental backups:

I also came up with a formula to calculate the real world transfer time for backup tapes and compiled and included a list of the values needed to plug into the formula for just about every format of backup tape used for the last thirty years:

I wrapped up the rewrite by adding ten practice tips for dealing with backups in civil discovery.

If you’re interested in digging into what makes backups go, and how to address them in civil discovery, I hope you give the latest Luddite Lawyer’s Guide a peek.  You don’t have to be a Luddite; but if you are and read the primer, there’s good chance you won’t be able to call yourself a Luddite anymore.  Feedback welcome.  Criticism encouraged.  Thanks.