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.

Today marks the tenth anniversary of this blog. It was born of frustration when years of essays I’d contributed to an American Lawyer Media blog were sold to Lexis, and stashed behind a paywall without so much as a by your leave. “Never again!” I vowed. I knew I’d lose readers going it alone, but I would be master of my destiny.

I christened the site with a quote from David Copperfield: “Whether I shall turn out to be the hero of my own life, or whether that station will be held by anybody else, these pages must show, adding, “I want the heroes of this site to be its readers: the lawyers, judges, support personnel and others with the wisdom to know they must master electronic evidence and the temerity to try. Blogging is an indulgence and a responsibility.  If I want you to visit, I’ve got to give you something worth your time.  Here, I’ll share things I’ve picked up about electronic discovery and computer forensics, striving to make those topics as interesting, exciting and engaging for you as they are for me.” 

So it began, and ten years on, I’ve written 228 posts, acquired 1,715 subscribers and been privileged to have 260,000 heroes stop by. I hope that I have shaped your thinking as you have shaped mine. Thank you.

Writing these pages has been a decade of joy. Ball in Your Court has been my place to float ideas, debate issues, fete friends, share discoveries, celebrate triumphs and mourn the passing of the dearly beloved. It would count for nothing at all without you, Dear Reader. I’m so grateful to know you’re there. Be well.

On the eve of each semester, I revise my E-Discovery Workbook to hasten my law students’ arrival at that glorious “aha” moment when the readings and exercises coalesce into something like understanding. In the decade I’ve been teaching E-Discovery and Digital Evidence, I’ve learned a good deal about what does and doesn’t work. I’ve also learned what I need to change in myself to teach them; not just the superstars who make teaching a joy, but the students who stumble and grumble and worry me to death. Some of what I’ve learned goes to the assumptions that I can and cannot safely make about my students’ understanding of law practice and the so-called “real world.” I fear I may do them a disservice if I dive into the fantastic world of forensic evidence without ensuring they have a context for what it is and why it matters. So, the material that follows is my latest effort on that score. I hope you find it worth your time and I’m grateful for your feedback and comments.

Introducing E-Discovery and Digital Evidence

The passing mention made of discovery during first year civil procedure classes cannot prepare law students to grasp the extent to which discovery devours litigators’ lives. For every hour spent in trial, attorneys and trial teams devote hundreds or thousands of hours to discovery and its attendant disputes.

Too, discovery is a trial lawyer’s most daunting ethical challenge. It demands lawyers seek and surrender information providing aid and comfort to the enemy—over the objections of clients, irrespective of the merits of the case, and no matter how much they distrust or detest the other side. Is there a corollary duty to act against interest in any other profession?

Discovery is hard because it runs counter to human nature, and electronic discovery is harder because it demands a specialized knowledge and experience few lawyers possess and far afield of conventional legal scholarship. E-discovery skills, as much as they’ve been key to lawyer competency for decades, are yet apt to be denigrated or delegated.

Civil discovery is a high-stakes game of “Simon Says.”  Counsel must phrase demands for information with sufficient precision to implicate what’s relevant, yet with adequate breadth to forestall evasion. It’s as confounding as it sounds, making it miraculous that discovery works as well as it does. The key factors making it work are counsel’s professional integrity and judges’ enforcement of the rules.

Counsel’s professional integrity isn’t mere altruism; the failure to protect and produce relevant evidence carries consequences ranging from damaged professional reputations to costly remedial actions to so-called “death penalty” sanctions, where a discovery cheater forfeits the right to pursue or defend a claim. Lawyers may face monetary sanctions and referral to disciplinary authorities.

The American system of civil discovery embodies the principle that just outcomes are more likely when parties to litigation have access to facts established by relevant evidence. Since relevant evidence often lies within the exclusive province of those not served by disclosure, justice necessitates a means to compel disclosure, subject to exceptions grounded on claims of privilege, privacy, and proportionality.

The U.S. Federal Rules of Civil Procedure articulate the scope of discovery as, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….”  Adding, “Information within this scope of discovery need not be admissible in evidence to be discoverable.”  Rule 401 of the Federal Rules of Evidence defines evidence as relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action (i.e., the fact is material).

Relevant.  Proportional. Nonprivileged. Commit these touchstones to memory.

The discovery of an opponent’s electronically stored information begins with a request for production under Rule 34 of the Federal Rules of Civil Procedure or a similar state rule of procedure. Rule 34 lets a party request any other party produce any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—in the responding party’s possession, custody, or control.  The responding party must respond to the request in writing within 30 days and may lodge specific objections and withhold production pursuant to those objections.

The simplicity of the rule hardly hints at its complexity in practice.  A multibillion-dollar industry of litigation service providers and consultants exists to support discovery, and a crazy quilt of court rulings lays bare the ignorance, obstinance, guile, and ingenuity of lawyers and clients grappling with the preservation and exchange of electronic evidence.

To appreciate what competent counsel must know about digital discovery, consider the everyday case where a customer slips and falls in a grocery store. A store employee witnesses the fall, helps the customer up and escorts her to the store manager, who prepares a written incident report. The customer claims the fall was caused by a pool of grease on the floor alongside a display of roasted chickens.  The customer returns home but feels enough pain to visit an emergency room the next day. After months of medication and therapy, doctors diagnose a spinal injury necessitating surgery. When the grocery store refuses to pay for medical care, the customer hires a lawyer to seek compensation.

From the standpoint of relevance in discovery, the case will stand on three legs: liability, causation and damages.

To establish liability, tort law requires the plaintiff demonstrate duty and a breach of that duty. The store owes customers a duty to furnish reasonably safe premises and to act reasonably to correct or warn of an unsafe condition like slippery chicken fat on the floor.  Yet, the store’s personnel must be aware of the condition to be obliged to correct or warn of the hazard or the defect must be present for a sufficient time that a reasonable store should have become aware of the hazard and protected its customers.

The store defends against liability by asserting that there was no grease on the floor and, alternatively, that any grease on the floor was spilt by another customer and, despite exercising reasonable care, the store lacked the opportunity to find and clean up the spill before the fall. The store also asserts the plaintiff failed to watch where she was walking, contributing to cause her injuries. Finally, the store contests damages and causation, arguing that the plaintiff exaggerates the extent of her injuries and something other than the fall—perhaps a pre-existing condition or an unrelated trauma—is the true cause of plaintiff’s complaints.

As plaintiff’s counsel ponders the potentially relevant evidence in the store’s control, he wonders:

1. Who might have witnessed the fall or the conditions?
2. Were witness statements obtained?
3. How did the store clean up after the fall?
4. Were photographs taken?
5. Were video cameras monitoring the premises?
6. Is there a history of other falls?
7. Did the roasted chicken display leak?
8. How frequently are the floors inspected and cleaned?

Defense counsel has her own questions:

1. Did the plaintiff stage the fall to profit from a claim?
2. Did the plaintiff suffer from a pre-existing condition?
3. Has the plaintiff made other claims?
4. Was the plaintiff impaired by drink, drugs or disability?
5. Has the plaintiff behaved inconsistently with her claimed infirmities?

Both sides worry whether the other side acted diligently to preserve relevant evidence and if anyone has altered or destroyed probative material. In gauging proportionality, comparable cases have prompted damage awards ranging from one-half million to two million dollars.

The store is part of a national chain, so there are detailed policies and procedures setting out how to police and document the premises for hazards and deal with injuries on the property. There’s an extensive network of digital video cameras throughout the store, warehouse, and parking lot.  A database logs register sales, and all self-checkout scanners incorporate cameras. Employees clock in and out of their shifts digitally. Multiple suppliers and subcontractors come and go daily. Virtually everyone carries a cell phone or other device tracking geolocation and exertion.  A corporate database serves to manage claims, investigations, and dispositions. Even a simple fall on chicken fat casts a long shadow of electronic artifacts.

Video of the fall and the area where it occurred is crucial evidence. Store policy required a manager review and preserve video of the event before recordings overwrite every 14 days. The manager reviewed the store video and, from one of the deli-area feeds, kept footage beginning one minute before the fall until five minutes afterward, when a store employee led the plaintiff away, but before cleanup occurred. In the video, another kiosk obstructs the view of the floor. The manager also preserved video of the plaintiff arriving and leaving the premises. In one, plaintiff is looking at her phone. The surveillance system overwrote other video recordings two weeks later.

The manager photographed the area showing the condition of the floor, but arrived after employees mopped and placed yellow caution cones. The store’s counsel claims staff mopped because the plaintiff dropped a chicken she’d selected, spilling grease when she fell, not because there was any grease already on the floor.

The parties engage in discovery seeking the customary complement of medical records and expenses, lost earnings documentation, store policies and procedures, similar prior incidents, and incident investigations.

Seeking to identify eyewitnesses or others who may have spilled grease buying roast chicken, plaintiff requests the store “produce for a period one hour before and after the fall, any photographic or transaction record (including credit- and loyalty-card identifying data) of any persons on the premises.”  Plaintiff makes the same request for “any persons who purchased roast chicken.”  Plaintiff also demands the names, addresses, and phone numbers of employees or contractors on the premises within one hour on either side of her fall.

In its discovery, the store asks that plaintiff “produce any texts, call records, application data or other evidence of phone usage for one hour before and after the alleged fall and the contents of any social networking posts for six months prior to the alleged injury to the present where any content, comment, or imagery in the post touches or concerns the Plaintiff’s state of mind, physical activity, or consumption of drugs or alcohol.”  The store also demands that plaintiff produce “data from any devices (including, but not limited to, phones, apps, fitness equipment, fitness monitors, and smart watches) that record or report information about the plaintiff’s sleep, vital signs, activity, location, movement, or exertion from six months prior to the alleged fall to the present date.”

Chances are both sides will balk at production of the electronically stored data, and it will eventually emerge that neither side considered the data sought when obliged to preserve potentially relevant evidence in anticipation of litigation. The parties will meet and confer, seeking to resolve the dispute; but when they don’t arrive at a compromise narrowing the scope of the requests, both sides will file Motions to Compel asking the Court to order their opponent to hand over the information sought.

The parties will object on various grounds, alleging that the information isn’t relevant, doesn’t exist, or is not reasonably accessible. Lawyers will point to undue burden and cost, oppression, excessive inroads into private matters, and even claims the data requested is privileged or a trade secret. Requests will be challenged as “disproportionate to the needs of the case.”

One side assures the judge it’s just a few clicks to gather the data sought.  With equal certainty, the other side counters that the task requires teams of expensive experts and months of programming and review.

Plaintiff’s counsel points out that every roast chicken sold the day of the fall bore a Universal Product Code (UPC) scanned at a register to establish its price and update the store’s inventory control system.  Thus, every roast chicken sale was logged and the name of every buyer who used a credit, debit, loyalty, or EBT/SNAP assistance card was likewise recorded. “It’s right there on the register receipts,” counsel argues, “Just print them out.”  “It’s the same for every employee,” he adds, “they scan people in and out like roast chickens.”

Plaintiff is less sanguine about the defense’s demand for phone, social networking, and fitness monitor evidence, uncertain how to collect, review, and produce whatever’s not been lost to the passage of time. “It’s going to take forever to look at it all,” she protests, “and who knows if there’s anything relevant? It’s disproportional!”

The defendant concedes it tracks purchases and card usage, but not in the same system. The store claims it can’t pair the transactions and, if they produce the names, will those buyers prove to be eyewitnesses? Defense counsel cries, “Judge, it’s a fishing expedition!”

As both sides dodge and dither, the information sought in discovery vanishes as, e.g., the store purges old records or plaintiff upgrades her digital devices.  All but a minute of video leading up to the fall has been overwritten by the time the first discovery request is served.  When that scant minute proves too short to establish how long the grease was on the floor, the plaintiff is prejudiced and files a Motion for Sanctions seeking to punish the defendant for the failure to preserve crucial evidence.  When it’s learned the plaintiff closed her Facebook account after the fall and her posts are gone, the defendant files its own Motion for Sanctions.

The defendant will argue that it shouldn’t be punished because it didn’t intend to deprive the plaintiff of the video; “it just seemed like a minute was enough.” Defendant will claim harm occasioned by the loss of plaintiff’s Facebook posts, positing the lost posts would have shown the plaintiff to be physically active and happy, undermining plaintiff’s claims of disability and lost enjoyment of life.

This is just a run-of-the-mill slip and fall case, but the outcome depends upon the exchange of an assortment of relevant and probative sources of electronic evidence.

Now, consider the far-flung volume and variety of electronic evidence in a class action brought for 100,000 employees, for a million injured by a massive data breach or a bet-the-company patent fight between technology titans. We cannot throw up our hands and say, “It’s too much! It’s too hard! It’s too expensive!”

Instead, we must balance the need to afford access to information enabling resolution of disputes based on relevant evidence against denying that access because costs and burdens outweigh benefits. Competency is key because disparity breeds distrust. Most would agree that the better a lawyer’s grasp of information systems and electronic evidence, the greater the potential for consensus with a knowledgeable opponent acting in good faith.

But, when it comes to competency in e-discovery, there’s little agreement. Must lawyers comprehend the discovery tasks they delegate to others? Where is the line between delegating discovery to laypersons and the unauthorized practice of law? How does a lawyer counsel a client to preserve and produce what the lawyer does not understand and cannot articulate?

We can define literacy and measure reading proficiency; but there is no measure of literacy when it comes to electronic evidence and e-discovery. How can one become literate in the conventional sense without knowing an alphabet, possessing a vocabulary, and understanding the concepts of words and phrases? A gift for pattern recognition might let a savant fake it for a time; but genuine literacy entails mastering fundamentals, like awareness of speech sounds (phonology), spelling patterns (orthography), word meaning (semantics), grammar, (syntax), and patterns of word formation (morphology). One in eight adult Americans cannot read. Do we expect any of them are lawyers?

Electronic evidence and e-discovery literacy demands more than what’s required for computer literacy (the ability to use computers and related technology efficiently) or digital literacy (the ability to find, evaluate, and communicate information via digital platforms). Computer and digital literacy are just a start: necessary but insufficient.

Competence in e-discovery and digital evidence encompasses a working knowledge of matters touching evidence integrity and being equipped to support and challenge the authenticity and admissibility of electronic evidence. Competence requires that one understand, inter alia, what electronically stored information is, where it resides, the forms it takes, and the metadata it implicates. What makes it trustworthy? How is it forged and manipulated? What constitutes a chain of custody sufficient to counter attacks on your handling of evidence? How do you properly preserve data without altering it? How do you communicate technical obligations to technical personnel without understanding the language they speak and the environment in which they work? How do you seek, cull, search, sort, review, and produce electronically stored information? What does it cost? How long does it take?

We expect banking attorneys to understand banking and real estate attorneys to understand real estate. Shouldn’t we expect trial lawyers to understand e-evidence and e-discovery? If so, do we start by teaching them the alphabet or do we hope they can learn to fake it without fundamentals?

This course reflects my sense that, while one can surely become a fine physician without it, I want my doctor to have taken biochemistry…and passed. Likewise, I believe students of electronic evidence and e-discovery must not be strangers to data storage, collection, encoding, processing, metadata, search, forms of production, and the vocabulary of information technology and computer forensics.

If you believe that all a trial lawyer needs to know is the law, this is not the course for you. Here, we celebrate the “e” in e-discovery and e-evidence. You’ll get your hands dirty with data, use modern tools and learn to speak geek. We strive together toward competence and confidence, so that you may emerge, not as ill-equipped computer scientists, but poised to be truly tech-savvy litigators.