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

Back when I first heard about credit default swaps and mortgage backed securities, I applied my rule-of-thumb for non-traditional investments.  That is, if I try to understand the mechanics and value of a process and can’t, maybe there’s less there than meets the eye.  It’s an egocentric approach but, it’s kept me from following the crowd into some pretty awful investments.  If I don’t get it, I don’t buy it.

Searching ESI is what I do during much of my waking hours, so I pretty well “get” searching ESI.  I still regard myself as more a student than a teacher of technology assisted review, but I’m trying very, very hard to “get” all the variations of these advanced analytic technologies…with mixed success.  I should mention: You can’t use the If I don’t get it, I don’t buy it credo unless you also bust your hump trying to get it.

I mention all of this by way of noting that Nicholas Economou, the Chairman and CEO of e-discovery service provider H5, kindly dropped me a note to announce that H5 had secured a patent for its “high recall and high precision relevancy searching” process.  Per H5’s press release, U.S. patent number 8,296,309 covers H5’s method for “generating and iteratively refining relevance rules used as complex search queries to find relevant documents. Based on direction from counsel and informed by review of example documents, relevance rules are populated with linguistic search terms and iteratively refined to increase accuracy.”

Holy smokes!  That’s what I do!  H5 has patented practical keyword search! Continue reading →

The title of this post is the question posed by a plaintiffs’ lawyer who called because he didn’t know what to make of a proposal from opposing counsel.  The lawyer explained that he’d attended a Rule 26(f) “Meet ‘n Confer” where he’d tried to manifest the right grunts and signs to convey that he wanted electronically-searchable production.   As neither of the lawyers conferring knew how they might achieve such a miracle, they shared a deer-in-headlights moment, followed by the usual “let me ask my client and get back to you” feint.  Some years back, I defined a Rule 26(f) conference as “Two lawyers who don’t trust each other negotiating matters neither understand.”  That definition seems to have withstood the test of time.

Before my high-handed cynicism turns you off completely, let me explain that I appreciate that many fine lawyers didn’t grow up with this “computer stuff.”  They earned their stripes with paper and, like me, leapt to law from the liberal arts.  They’re crazy busy with the constant demands of a trial practice, and ESI is just not a topic that excites their interest.  Some are still recovering from the last time they tried to pick up pointers from a tech-savvy person and nearly drowned in a sea of acronyms and geek speak.

I feel your pain.  I do.  Now, let’s ease that pain:

The other side proposed:

Documents will be produced as single page TIFF files with multi-page extracted text or OCR.  We will furnish delimited IPRO or Opticon load files and will later identify fielded information we plan to exchange. 

Are they trying to screw you?  Probably not.
Are you screwing yourself by accepting the proposed form of production?  Yes, probably.

Continue reading →

If you talk frankly with those in the predictive coding business, it won’t be long until they lament, “Our beans are so magical, we just can’t fathom why more customers aren’t planting them.”  They insist that lawyers (or corporations or judges) don’t “get it.”  That is, those who hold the purse strings or call the shots don’t appreciate how much money can be saved, how much better the result can be or how much tedious review can be delegated to tireless technology tools.

It’s a common sentiment expressed by all in the business of selling technology assisted review; yet despite their shared frustration, I see no indication that they have laid down their arms and formed an industry association geared to jointly advancing shared goals and resolving common problems  The result has been widespread confusion about the technology and more heat than light when it comes to litigants having the confidence to not only use the emerging technologies but also to deploy them in ways that don’t trade one broken system for another.

It would be much easier to educate the bench and bar from a place of consensus; and cheaper, too.  As the small cadre of providers claw for their piece of a nascent market, they sow seeds of doubt.  The statistical precepts are identical.  The underlying technologies are substantially similar (although the particulars of the algorithms differ).  The tools have more in common than sellers care to admit.  Certainly, consumers think them much the same.

When the dairy industry wanted to float all boats, they asked, simply, “Got Milk?”  They didn’t ask “Got Milk from from Holstein-Friesian cattle milked in herringbone parlors and sterilized by plate heat exchangers?“

How is it a “Got Milk?” message that didn’t promote the interests of one supplier over another acquired a 90% awareness among U.S. consumers?  Could it be that members of milk boards put their common needs above their individual market share?

“But,” the sellers reply, “milk is a fungible good, and e-discovery services aren’t!”

Hmmm, Really?  Does it seem to you, dear reader, that consumers of e-discovery services seek highly-differentiated offerings, not commoditized services?  Are no suppliers being shut out by low bidders touting meat cleaver culling at rock-bottom per gigabyte pricing when technology-assisted approaches would be so much better?

It’s time to wake up and smell the TAR.  Predictive coding vendors (and others) need to band together, establish practical guidelines and reasonable standards, jointly promote education and research and see where a little shared effort can build a market big enough for all–not to fix prices or divvy up spoils, but to direct energy and creativity to secure a whole greater than the sum of its parts and to prevent quality from becoming the red-headed stepchild of EDD.

So, Bob, Craig, Arnaud, Quin, Herb, Steve, Ian, Jim, Amir, Warwick, Nicholas, and perhaps even you, too, Gordon, Maura, Bill and Karl.   Don’t wait for Sedona, EDRM, EDI or (heaven help us) one of the EDD lobbying groups to call the tune!  Form your own industry organization now.  Check your egos at the door, keep it simple, don’t fight over who will run it, have an organizational meeting, identify common interests, hire a part-time admin and write some modest checks.  The payback to you will be great, and the benefit to the justice system greater still.

And, no, there’s nothing in it for me.  I just think it’s a good idea.  Apologies to those whose names I omitted in my desire to avoid sounding like the start of a Mickey Mouse Club episode.

So Hewlett-Packard is facing the music on its acquisition of EDS and taking an $8 billion write down on its $13.9 billion acquisition of EDS in 2008.  That’s sad, but not surprising.  It naturally makes one wonder about the fate of Autonomy, which HP acquired about a year ago for the absurdly premium price of $10.3 billion.  How long until that write down, and how big will it be? Continue reading →