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.

U.S. Magistrate Judge Paul S. Grewal (pronounced “grey-wahl”) cuts an impressive figure in the e-discovery community.  In less than four years on the bench, Judge Grewal has written several opinions addressing instances of discovery incompetence and misconduct in epic battles between the tech titans tramping through his court in San Jose, California.  His latest is an order on a Motion to Compel and for Sanctions in a patent dispute, Venture Corp., LTD v. James P. Barrett.  It’s a fight between a multi-billion dollar Singapore tech concern and an inventor.  In praising Judge Grewal, I feel obliged to point out that he enjoyed an unfair advantage over the litigants in that His Honor read the Federal Rules of Civil Procedure, particularly Rule 34, which Judge Grewal termed “about as basic to any civil case as it gets.”  No fair reading the rules, Judge! Continue reading →

The Sedona Conference “Best Practices Recommendations & Principles for Addressing Electronic Document Production (2d Edition 2007)” still impresses me as a thoughtful and balanced articulation of how electronic discovery should proceed.  Yet, each time I read them, Principle Six stands out like a witch’s hairy mole on a pretty face.

Sedona Principle 6 is overdue for an overhaul:  It’s out of synch with reality, and always has been.

The current Principle Six states, “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

Sometimes responding parties are best situated.  But, sometimes they are foxes guarding henhouses, and sometimes possess so little competence that their folly serves as fodder for sanctions.

The presumption of superior competence is belied by the reality of widespread confusion and incompetence.  Yes, an organization may better know its own data for it’s in a superior position to know; but, it’s foolish to assume they possess a superior ken of their data with respect to its identification, preservation and transit into and through e-discovery.  That’s a specialty. Continue reading →