This is the seventh in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail.  Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides.  Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data.  Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users.  They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner.  In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it.  Don’t leave the fox guarding the henhouse.

Consider the following as parts of an effective e-mail preservation effort:

• Litigation hold notices to custodians, including clear, practical and specific retention directives. Notices should remind custodians of relevant places where e-mail resides, but not serve as a blueprint for destruction. Be sure to provide for notification to new hires and collection from departing employees.
• Suspension of retention policies that call for purging e-mail.
• Suspension of re-use (rotation) of back up media containing e-mail.
• Suspension of hardware and software changes which make e-mail inaccessible.
• Replacing backup systems without retaining the means to read older media.
• Re-tasking or re-imaging systems for new users.
• Selling, giving away or otherwise disposing of systems and media.
• Preventing custodians from deleting/ altering/corrupting e-mail.
• Immediate and periodic “snapshots” of relevant e-mail accounts.
• Modifying user privileges settings on local systems and networks.
• Archival by auto-forwarding selected e-mail traffic to protected storage (i.e., journaling).
• Restricting activity like moving or copying files tending to irreparably alter file metadata.
• Packet capture of Instant Messaging (traffic or effective enforcement of IM prohibition.
• Preserve potential for forensic recovery.
• Imaging of key hard drives or sequestering systems.
• Suspension of defragmentation.
• Barring wiping software and encryption, with audit and enforcement.

Continue reading →

This is the third in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Cowboys and Cannibals

[Originally published in Law Technology News, June 2005]

With its quick-draw replies, flame wars, porn and spam, e-mail is the Wild West boom town on the frontier of electronic discovery–all barroom brawls, shoot-outs, bawdy houses and snake oil salesman.  It’s a lawless, anyone-can-strike-it-rich sort of place, but it’s taking more-and-more digging and panning to get to the gold.

Folks, we need a new sheriff in town.

A Modest Proposal
E-mail distills most of the ills of e-discovery, among them massive unstructured volume, mixing of personal and business usage, wide-ranging attachment formats and commingled privileged and proprietary content.  E-mail epitomizes “everywhere” evidence.  It’s on the desktop hard drive, the server, backup tapes, home computer, laptop on the road, Internet service provider, cell phone and personal digital assistant.  Stampede!

There’s more to electronic data discovery than e-mail, but were we to figure out how to simply and cost-effectively round up, review and produce all that maverick e-mail, wouldn’t we lick EDD’s biggest problem?  Continue reading →

This is the second in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Unclear on the Concept

 [Originally published in Law Technology News, May 2005]

A colleague buttonholed me at the American Bar Association’s recent TechShow and asked if I’d visit with a company selling concept search software to electronic discovery vendors.  Concept searching allows electronic documents to be found based on the ideas they contain instead of particular words. A concept search for “exploding gas tank” should also flag documents that address fuel-fed fires, defective filler tubes and the Ford Pinto. An effective concept search engine “learns” from the data it analyzes and applies its own language intelligence, allowing it to, e.g., recognize misspelled words and explore synonymous keywords.

I said, “Sure,” and was delivered into the hands of an earnest salesperson who explained that she was having trouble persuading courts and litigators that the company’s concept search engine worked. How could they reach them and establish credibility?  She extolled the virtues of their better mousetrap, including its ability to catch common errors, like typing “manger” when you mean “manager.”

But when we tested the product against its own 100,000 document demo dataset, it didn’t catch misspelled terms or search for synonyms. It couldn’t tell “manger” from “manager.” Phrases were hopeless. Worse, it didn’t reveal its befuddlement. The program neither solicited clarification of the query nor offered any feedback revealing that it was clueless on the concept. Continue reading →

One of the conceits of writing is the perception that when you’ve written on something, it’s behind you.  Not that nothing else need be said on the topic, but only that it need not be said by you.  That’s silly for a host of reasons.  I started writing the print version of Ball in Your Court ten years ago–before the 2006 Federal Rules amendments and before the EDRM.  Half my readers weren’t in the field then, and veteran readers surely missed a few missives. Plus, if the point was worth making, perhaps it bears repeating. So, I now revisit columns and posts from the primordial past of e-discovery–starting over as it were, updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

The DNA of Data

[2005: the very first Ball in Your Court]

Discovery of electronic data compilations has been part of American litigation for two generations, during which time we’ve seen nearly all forms of information migrate to the digital realm.  Statisticians posit that only five to seven percent of all information is “born” outside of a computer, and very little of the digitized information ever finds its way to paper.  Yet, despite the central role of electronic information in our lives, electronic data discovery (EDD) efforts are either overlooked altogether or pursued in such epic proportions that discovery dethrones the merits as the focal point of the case.  At each extreme, lawyers must bear some responsibility for the failure.  Few of us have devoted sufficient effort to learning the technology, instead deluding ourselves that we can serve our clients by continuing to focus on the smallest, stalest fraction of the evidence: paper documents.  When we do garner a little knowledge, we abuse it like the Sorcerer’s Apprentice, by demanding production of “any and all” electronic data and insisting on preservation efforts sustainable only through operational paralysis.  We didn’t know how good we had it when discovery meant only paper. Continue reading →

On Monday, I screened Joe Looby’s film, The Decade of Discovery, for my University of Texas Law School e-discovery class.  It was a last-minute change prompted by our scheduled speaker falling ill; but, it proved a most effective way to coalesce the information covered in class.  It was also fun to know all of the “actors” and to have lately been with most of them in New Orleans for The Sedona Conference All Voices meeting and in D.C. for the Georgetown Advanced E-Discovery Institute and John Facciola Appreciation Dinner.  It was all I could do to not shout, “Hey, I know her, and him, and that guy, too!”

Afterward, we debated whether it would be better for e-discovery students to see the film at the start of a semester or at the close.  The consensus was that it might have scared students away if they’d seen it too soon.  I think it would be worthwhile to screen it at both the start and end of the semester, if only to make students appreciate how conversant they’ve become in the esoteric subject matter in three months.  Either way, it’s an entertaining hour for bored, stressed  law students.

Likewise, it’s will be a entertaining and FREE evening for anyone who can be in Houston on Tuesday, December 2, 2014 and wishes to attend the complimentary screening of The Decade of Discovery at the Majestic Metro Theatre (911 Preston Street in downtown Houston).  Sponsored by Bloomberg BNA, the evening starts with a networking reception from 6:30-7:30 pm followed by opening remarks from the director at 7:30pm. The screening runs from 7:45-8:45 pm and concludes with a spirited panel discussion.  I am one of the panelists, along with Jason Baron (a/k/a The Sultan of Search), who stars in the film.

To recap, it’s fun, it’s free and the festivities start at 6:30 pm on Tuesday, December 2, 2014 at the Majestic Metro Theatre.  Click here to register to attend.

Because most of you will already be dressed like the actors, feel free to treat this like a midnight screening of Rocky Horror Picture Show and say (or sing) along.  And if you fear it might not be exciting to hear people talk about the tribulations of keyword search for an hour, I assure you that (spoiler alert) there are at least two dramatic car crashes depicted in the film, and there are no purely gratuitous sex scenes.