I’m livid about FBI Director James Comey’s handling of the Huma Abdein e-mails. “Reckless” doesn’t begin to describe Comey’s self-indulgent decision to release information about a situation he clearly does not yet grasp, in a manner that elevates Jim Comey above longstanding Justice Department policy and the integrity of a Presidential election.  Mr. Comey’s justification is couched entirely in his personal predilections, not those of the Bureau or Justice.  It is all “I, I, I” and none of  “we the Bureau” or “we the Justice Department.”  Mine is a procedural objection, not a political one. Whatever my glee at seeing Trump exposed for the weasel I know him to be, I would be every bit as critical had Comey’s half-baked announcement concerned Trump’s e-mail as Clinton’s.  But, Comey’s folly is an opportunity to glean some e-discovery insight.   Continue reading →

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:

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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 →