Today was ostensibly the last day for public comment on the proposed amendments to the Federal Rules of Civil Procedure.  The good news for other procrastinators is that the submission deadline has been extended to accommodate scheduled website maintenance,  The new deadline for submitting public comments is 11:59 PM ET on Tuesday, February 18, 2014.  Over 1,600 comments have been submitted, and I’ve been trying to wade through them, unsurprised at the deep division between plaintiffs and corporate interests.  I can’t recall another time when so much has been spent by corporate lobbyists to influence the civil rulemaking process.  Clearly, corporate America expects a bigger payoff from these proposed amendments than I do.

Notwithstanding their strengths, there are aspects of the proposed amendments that should go back to the drawing board.  Many commentators focus on problems with Proposed Rule 26 and it’s efforts to narrow the scope of discovery.  Some are incensed that proposed Rule 37(e) offers insufficient immunity from sanctions for spoliation, choosing to ignore the fact that the incidence of spoliation sanctions in federal court is historically less than the national incidence of death by lightning strike.  Ironically, those grousing the loudest are the same white shoe-types who play golf in a thunderstorm.

I finally threw my comment on the pyre, I mean pile, or, at least I tried to do so; but, the submission web page was indeed shut down for website maintenance.  That gave me time to solicit your input, dear reader, while there’s still a chance to tweak my comments if you find I’ve made a mess of it.  Here’s what I’m planning to submit: Continue reading →

Over the course of the last decade, it’s been a Sisyphean task to get lawyers to lay aside rigid ideas about forms of production in e-discovery and focus on selecting forms that function. 

“Forms that function.”  Forms of production that work.

Ever since the demanding class, “Architecture for Non-Architects” at Rice University, I’ve been a wannabe architect, and the battle cry, “form follows function,” my mantra.  It’s ascribed to Louis Sullivan, legendary American architect and Father of the Skyscraper.  “Form follows function” fairly defines what we think of as “modern,” and it’s a credo at the heart of the clearest idea I’ve had in a while, being that we should produce e-mail in forms that can be made to function in common e-mail client programs like Microsoft Outlook.

I don’t point to Outlook because I think it a suitable review platform for ESI (I don’t, though many use it that way).  I point to Outlook because it’s ubiquitous and, if a message is produced in a form that can be imported into Outlook, it’s a form likely to be searchable, sortable, utile and complete.  More, it’s a form that anyone can assimilate into whatever review platform they wish at lowest cost.

The criterion, “Will the form produced function in an e-mail client?” enables parties to explore a broad range of functional native and near-native forms, not just PSTs.  It an objective “acid test” to determine if e-mail will be produced in a reasonably usable form; that is, a form not too far degraded from the way the data is used by the parties and witnesses in the ordinary course.

Forms that Function retain essential features like Fielded Data, allowing users to reliably sort messages by date, sender, recipients and subject, as well as Message IDs, supporting the threading of messages into coherent conversations.  Forms that Function supply the UTC Offset Data within e-mails that allows messages originating from different time zones and using different Daylight Savings Time settings to be normalized across an accurate timeline. Forms that Function don’t disrupt the Family Relationships between messages and attachments.  Forms that Function are inherently electronically searchable.

Best of all, producing Forms that Function means that all parties receive data in a form that anyone can use in any way they choose, visiting the costs of converting to alternate forms on the parties who want those alternate forms and not saddling parties with forms so degraded that they are functionally fractured and broken.

If you are a requesting party, don’t be bamboozled by an alphabet soup of file extensions when it comes to e-mail production (PST, OST, MSG, EML, DBX, NSF, MHTML, TIFF, PDF, RTF, TXT, DAT, XML).  Instead, tell the other side, “I want Forms that Function.  If it can be imported into Microsoft Outlook and work, that form will be fine by me.”

If the other side says, “We will pull all that information out of the messages and give it to you in a load file,” say, “No thanks, leave it where it lays, and give it to me in a Form that Functions!“

In my last post, I addressed why search terms used to cull data sets in discovery should not be protected as attorney work product.  Today, I want to distinguish an attorney’s “investigative queries” (for case assessment, to hone searches or to identify privileged content) from “culling queries” (to generate data sets meeting a legal obligation, whether conceived by an attorney, client, vendor or expert).   I contend culling queries warrant no work product protection from disclosure.

Let’s assume a producing party has a sizable collection of potentially responsive electronic information.  Producing party concludes that it would be too costly, slow or unreliable to segregate the ESI by reading everything and, instead, decides to examine just those items that contain particular words or phrases.  Keyword queries thus serve to divide the ESI into two piles: one that will be reviewed by counsel and another that no one and nothing will qualitatively review.  The latter is the “discard pile.”  Culling queries may be applied iteratively, first to collect data from the enterprise and later to cull the collection for review.  The reductive process may entail the successive use of a client’s local and enterprise search capabilities and/or a law firm’s or vendor’s search tools.

The common thread is that each lexical search mechanism serves to exclude ESI lacking certain terms from substantive review.  No one ever assesses the discards for relevance or responsiveness.

Now, if we could be confident that keyword culling worked reasonably well and that the persons who came up with keywords were lexical magicians, there’d be no need to worry over the discard pile.  We could trust that what we don’t know doesn’t hurt us.

But we do know that a hefty slug of responsive items ends up in that discard pile.  We know this because studies and experience have established that keyword search is a crude, mechanical filter.  It leaves most of what we seek behind.

Whether we are leaving behind an endurable or unendurable volume of responsive items depends on just how poorly those keywords performed.  To gauge that, we’ve got to know what queries were run. Continue reading →

Digging into the digital mail bag (there’s a skeuomorph for you), I received a series of thoughtful questions from a reader ready to dip his toes into the bracing waters of native production but harboring some of the same nagging concerns others raise when they ponder how to integrate native production into workflows born of legacy paper processes.

Here were the questions:

What is the exact difference between native and near-native?  My big concern with producing natively is from what I’v’e read about the risks related to metadata/privilege and how to go about using native data at depositions and in court.  Are those concerns that can be dealt with simply?  Finally, how do you go about producing natively?  I presume by uploading data to an ftp site for the parties to access?  Are there other ways?

I replied: Continue reading →