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 →

I’ve been buried in big data for the last week, so look forward to my annual pilgrimage to our nation’s capital for the Georgetown University Law Center’s Advanced E-Discovery Institute, starting Thursday.  Some years the GULC AEDI is good, and some years it’s great; but, every year it’s a boisterous class reunion for the Sedona Bubble Boys and Girls for whom the Institute has become an unmissable event.

Though I mourn the Institute’s waning efforts to teach the “e” in e-discovery, the 2013 Institute nonetheless retains its two finest features: the opening case update and the closing judicial round table.  No other conference brings together a bigger, brighter constellation of e-discovery “rock star” judges than Georgetown.

This year, I’m gratified to be a part of a new track dedicated to teaching cooperation in practice, offered by the GULC in conjunction with The Sedona Conference®.  It’s a taste of the two-day Sedona Conference Cooperation Training program in which I served on the faculty in Phoenix last February. Continue reading →

I’m on a crusade to underscore the need for lawyer competence in that crucial “e” that precedes “e-discovery.”  It’s no longer enough to understand the law in isolation; today’s lawyer must understand some fundamentals of information technology and electronic evidence.  My efforts often prove quixotic, as everywhere I’m met with the attitude that electronic discovery isn’t a lawyer’s concern:  “It’s something you hire people to do,” they say.

Certainly, we must hire people to do things we cannot possibly do.  But I contend that we hire people to do many things we could learn to do ourselves, and do economically.  Remember Eddie Murphy’s royal backside wipers in Coming to America? All it takes is money to burn; and if it’s someone else’s money, who really cares?

But at what point do lawyers outsource themselves into superfluity?  Clients can hire vendors.  Bigger clients can and should bring much of the e-discovery process in-house.  Will lawyers remain captains of the e-discovery ship, or go the way of the local bookseller and video rental shop?  Are lawyers increasingly just middling, meddling middlemen in e-discovery; intermediaries serving mostly to inflate cost and adding little value? Continue reading →

It’s 3:00 am, and I’m laboring to pull together a slide deck for a speech in a few hours.  My hosts want me to cover all the essentials of e-discovery and then take questions. They’ve generously allotted thirty minutes.

So, I’m struggling to come up with a few hard, fast rules to share; rules so plain and true I can preface them “always” and “never.  So far, I’ve got:

ALWAYS…

1. Put a written legal hold in place
2. Make sure the legal hold is clear, personal and practical
3. Test searches against representative samples of data
4. Settle on forms of production before collection

NEVER…

1. Accept IT knows what to do until you’re certain of it
2. Rely exclusively on custodial hold and collection
3. Assume that what a vendor asks for is the price you’ll pay
4. Review until you deduplicate

As I ponder how I’ll fill out my list to ten items, my thoughts drift to another list of commandments from a long ago CLE program.  I’m reminded that any list of “always” and “never” must occasionally yield to those with the expertise and judgment to ignore them.

There are great lessons in life that stick with you.  If you’re very lucky, there are lots of them.  One of mine was listening to the late, great Irving Younger share his Ten Commandments of Cross Examination.  How I envy Judge Younger his singular delivery and gift for storytelling!  If I ran the world, no lawyer would be admitted to the courthouse without affirming he or she had listened to a recording of Younger’s Ten Commandments of Cross-X at least twice.

One of Younger’s commandments held that a lawyer should never permit a witness to repeat direct testimony on cross examination.  He tempered this point with a story about Max Steuer, a bygone trial lawyer with the unenviable task of defending the owners of the Triangle Shirtwaist Factory, whose sweatshop burned in 1911, killing 146 seamstresses trapped inside.  In its sadness and its role as a catalyst for change, the Triangle Shirtwaist fire was the 9-11 of its day.

A witness named Katy told a horrific tale of surviving the conflagration and carnage. All who heard the sad young woman were stunned and angered.  But, on cross examination, Steuer not only had Katy retell her story, he had her tell it again and again.

She did.  Again and again.  Always verbatim, never changing a word.

Steuer’s ear caught something others missed, and by breaking the rule against repeating damaging testimony, Max Steuer brilliantly demonstrated that Katy had been scripted and coached too well.  An offended jury returned an acquittal.

But unless your mastery of e-discovery rivals Max Steuer’s legendary courtroom prowess, the list of always and never items above are worth observing.

Now, how about contributing some of your own “always” and “never” items as comments below?   Thanks.