I did an ILTA webcast this morning called “Going Native.” Steven Clark ably moderated the panel including Denise Talbert and Maureen Holland.  D4 sponsored.  Going Native did not mean we spoke in loincloths (although I can really only account for my own attire).  We addressed the pros and cons of producing ESI in native and near native forms versus conversion from native forms to TIFF images and load files.  I expected agressive pushback as I sang the praises (Just! Speedy! Inexpensive!) of native productions; but, steeled for debate, I was instead treated to fine dialog.  No one trotted out the usual hackneyed objections to native productions.  Advantages and disadvantages were thoughtfully addressed and everyone proved open to flexibility in forms of productions when to do so serves to meet a genuine need or solve a problem.

When polled, roughly half of those attending stated that they weren’t making production in native and near-native forms simply because the requesting parties hadn’t sought same.  Around 16% said they resisted native production out of concern that native productions were harder to track.  My sense is that the attendees were open–even eager–to embrace native production.  I wasn’t surprised by this because there are few audiences for e-discovery education as sophisticated and rational as ILTA audiences.  ILTA members tend to be hands on with ESI, affording them a better appreciation of the downsides of image and load file productions.  They’re typically the ones tasked with cleaning up the messes caused by malformed load files and TIFF creation errors.

That 16% missing out on the advantages of native productions out of concern that native files aren’t Bates stamped on each page distresses me because I’m sure they correspond to a much larger percentage of lawyers who can’t conceive of litigating without Bates numbers (and protective legends) on every page. It seems a lot of people don’t realize that you don’t have to give up Bates numbers and protective legends when you make native productions.  If you approach native productions the right way, the Bates numbers will still be there when you need them.  I’ll explain how that works, but first please indulge me in a little mental exercise. Continue reading →

A colleague flagged an opinion from the Northern District of Oklahoma she’d seen blogged on a big firm website. In the decision, the judge spoke dismissively of “apps” that must be responsible for those hairballs so common in discovery: vague requests and objection-obscured replies.  The blogger took the judge’s mention of apps too-literally, even noting that the judge failed to name the offending software.

I suspect those literary devices called irony and satire may have been lost on the blogger.  The court in Howard v. Segway, Inc. wasn’t saying both sides had actually used bad apps; instead, Magistrate Judge Paul J. Cleary was referencing the current fervor for apps metaphorically, as a means to convey that the more things change, the more they stay the same.  That is, whether you slavishly draw boilerplate from a paper form or program the same mindless twaddle into a document assembly app on your iPad, drivel remains drivel, and obstruction invites sanctions. Continue reading →

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. Continue reading →

[If this post seems a bit more basic than my usual in-the-weeds blather, it’s because this is taken from a CLE article I wrote for an upcoming panel discussion on “E-Discovery on a Budget.”  I’m particularly pleased with tips 7 and 8, and hope you’ll please share some of your own tips as comments.]

This really happened:
Opposing counsel supplied an affidavit stating it would take thirteen years to review 33 months of e-mail traffic for thirteen people.  Counsel averred there would be about 950,000 messages and attachments after keyword filtering.  Working all day, every day reviewing 40 documents per hour, they expected first level review to wrap up in 23,750 hours.  A more deliberate second level review of 10-15% of the items would require an additional two years.  Finally, counsel projected another year to prepare a privilege log.  Cost: millions of dollars.

The arithmetic was unassailable, and a partner in a prestigious law firm swore to its truth under oath. Continue reading →

It’s easy to get discouraged about the state of e-discovery education in America.  Within the bar, we trot out the same high level platitudes and shopworn caselaw at brief CLE sessions, omitting the technical content that lawyers desperately need but resolutely ignore.  So, it was heartening to be part of a weird and wonderful event this evening that restored a bit of my optimism.

Bill Hamilton, the Quarles & Brady partner from Tampa, is also Dean & Chairman of the Department of E-Discovery at Bryan University.  Bill has quietly and modestly made major contributions to e-discovery education in the United States, and I think it’s fair to label him the brains behind Bryan University’s flegling E-Discovery Project Management Certificate program.  It’s a splendid distance learning program, and whatever you may think about bricks-and-mortar universities versus their online counterparts, Bill and his distinguished Board and faculty have made sure that their classrooms of electrons preserve all the rigor of the ones made of atoms.

Dean Hamilton invited me to deliver the commencement address to the graduating class.  I was both flattered and flustered as I’d never given a commencement speech before and wasn’t sure how one would address the students and their proud family members and friends in a virtual environment.  I supposed it would be like a webcast, and it was, complete with my customary PowerPoint slides (Yes, it’s true I can’t sneeze without accompanying digital imagery). Continue reading →

 The sophomoric title of this post strives to underscore the trial bar’s proclivity to self-abuse when it comes to the petulant insistence on Bates numbers embossed on each “page” of ESI produced in discovery.  My previous post on native production began by referencing a famous psychology experiment.  Comments to that post concerning Bates numbers prompted my recall of another famous psychology experiment, where McGill University’s James Olds and Peter Milner set up an apparatus electronically stimulating the pleasure (i.e., orgasm) center of rats’ brains.  Given control of their stimulus, the rats began virtually tossing one off about 2,000 times an hour, ignoring food, water and hockey.  This is why men must rest between orgasms; else, we would die of dehydration in adolescence. Continue reading →

I took Introductory Psychology with a phalanx of freshmen in the cavernous Hamman Hall amphitheater at Rice University. Thirty-five years later, I best remember the astounding experimental work of Cambridge researchers, Colin Blakemore and G.F. Cooper, proving the ability to see isn’t born in us, but must be learned. Blakemore and Cooper reared kittens in darkness save for five hours a day when the kittens were placed in environments rigged so they could see only horizontal or vertical stripes.  When later exposed to a dangling black rod, the felines reared with horizontal stripes could see the rod only when it was positioned horizontally. As the rod was turned vertically, only the vertical world kittens saw it.  The rod “disappeared” in the eyes of the horizontal world kittens. Deprived of experience with the other plane, each group of kittens was incapable of seeing it. Their visual cortices didn’t develop the cells to see the horizontals or verticals they’d never experienced.

I think of those poor kittens as I ponder the relentless pushback I face trying to help lawyers see the unmistakable advantages of native review and production of ESI versus TIFF image and load file productions.  I’m starting to appreciate that what strikes me as pig headedness may just be kitten headedness. Continue reading →

Today was the last class of the semester for the Electronic Discovery & Digital Evidence course I teach at the University of Texas School of Law.  It’s been a great semester thanks to a luminous group of students who patiently endured fourteen three-hour classes and shined in six practical exercises on data mapping, encoding, legal hold, metadata and hash analysis, meet-and-confer and search and review.  But, there is nothing I could have done to make our final class more remarkable and memorable than the  excitement and joy of having today’s distinguished guest speaker, Magistrate Judge Paul Grimm, confirmed by the U.S. Senate as the nation’s newest Article III District Judge at the very moment he was concluding his videoconference with my class.

Congratulations, Judge Grimm!  No one more richly deserves this rare distinction, and everyone in the class will long remember that they were privileged to be part of the moment.  Thank you.

That Judge Grimm took the time during the Senate roll call vote to keep his promise to teach the class is so characteristic of the man’s honor, generousity and longstanding commitment to legal education, especially with respect to electronic discovery and digital evidence.  It felt like President Obama was teaching my Constututional Law class on election night.  Thanks again, Your Honor, and congratulations!  May you enjoy a long and healthy life to go with your new lifetime appointment.

Photo credit: Chris Dale