Long before the Pension Committee opinion, my dear friend and revered colleague, Browning Marean, presciently observed that the ability to frame and implement a legal hold would prove an essential lawyer skill.  Browning understood, as many lawyers are only now coming to appreciate, that “legal hold” is more than just a communique.  It’s a multi pronged, organic process that must be tailored to the needs of the case like a fine suit of clothes.  For all the sensible emphasis on use of a repeatable process, the most successful and cost-effective legal holds demonstrate a bespoke character from the practiced hand of an awake, aware and able attorney.

Unfortunately, that deliberate, evolving character is one of the two things that people hate most about legal holds (the other being the cost).  They want legal hold to be a checklist, a form letter, a tool–all of which have value, but none of which suffice, individually or collectively, to forestall the need for a capable person who understands the ESI environment and is accountable for getting the legal hold right.  It’s a balancing act; one maximizing the retention of relevant, material, non-duplicative information while minimizing the cost, complexity and business disruption attendant to meeting one’s legal responsibilities.  Achieving balance means you can’t choose one or the other, you need both.

Both.

This post is about custodial hold.  It’s a very hot topic in e-discovery, and for some lawyers and companies, custodial hold is perilously synonymous with legal hold:

“How do you do a legal hold in your organization?”
“We tell our people not to delete relevant stuff.”

Continue reading →

I’ve been thinking about how we implement technology-assisted review tools and particularly how to hang onto the on-again/off-again benefits of keyword search while steering clear of its ugliness.  The rusty flivver that is my brain got a kickstart from many insightful comments made at the recent CVEDR e-discovery retreat in Monterey, California.  As is often the case when the subject is technology-assisted review (by whatever name you prefer, dear reader: predictive coding, CAR, automated document classification, Francis), some of those kicks came from lawyer Maura Grossman and computer scientist Gordon Cormack.  So, if you like where I go with this post, credit them.  If not, blame me for misunderstanding.

Maura and Gordon are the power couple of predictive coding, thanks to their thoughtful papers and presentations transmogrifying the metrics of NIST TReC into coherent observations concerning the efficacy of automated document classification.  While they’re spinning straw into gold.  I’m still studying it all; but from where I stand, they make a lot of sense.

Maura expressed the view that technology-assisted review tools shouldn’t be run against subset collections culled by keywords but should be turned to the larger collection of ESI (i.e., the collection/sources against which keyword search might ordinarily have been deployed).  The gist was, ‘use the tools against as much information as possible, and don’t hamstring the effort by putting old tools out in front of new ones.’ [I’m not quoting here, but relating what I gleaned from the comment]. Continue reading →

I just edited a student law review article about discovery of social media content in which I despaired of the author’s failure to distinguish between the right to compel one’s opponent to make discovery from social media content versus the effort to directly access an opponent’s social media content.  To my mind, this is ground zero in the global conflict of social media discovery; and it’s a topic that evokes passionate–even combative–responses from people of all ages, particularly Gen-Xers and Millennials.   “Don’t f**k with my FaceBook” is their rallying cry.

I’m not too exercised about discovery of social media because I think the issues are simpler than we make them out to be.  When someone asks me, “Is social media discoverable?,” I answer, “Sure, in the same way potentially relevant, non-privileged and accessible ESI you store anywhere else is discoverable.”  It makes little difference whether a litigant stores potentially relevant, non-privileged information on a hard drive, server, thumb drive, floppy disk, Cloud VM or social media resource–or, for that matter, on a pressed, bleached and dried glob of pulverized pine tree.  The content of information is the principal determinant of its discoverability.  If relevant content is (a) not privileged, (b) reasonably accessible and (c) within a responding party’s care, custody or control, it’s discoverable.  There are exceptions,  but they don’t make Swiss cheese of the rule.

Sorry Marshall McLuhan, it’s not the medium, it’s the message.   Continue reading →

The 4th of July is one of my very favorite holidays, second only to Thanksgiving.  We try to do patriotic things like construct kitschy neighborhood parade floats or, as we did at breakfast, stand and sing a rousing rendition of the national anthem, hoping that I can still hit the high notes (I did).  Last night, to get in the mood, I watched the 2008 BBC 6-part series Stephen Fry in America, which follows the wry English entertainer as he races about all fifty U.S. states in his trademark London cab.  In Boston, Fry discussed contradictions in the American character with the late Peter Gomes, a pastor and Harvard professor of divinity who Fry described as “a black, gay, Republican Baptist.”  Gomes observed that, “One of the many things one can say about this country is that we dislike complexity, so we will make simple solutions to everything that we possibly can, even when the complex answer is obviously the correct answer or the more intriguing answer.  We want a simple ‘yes’ or ‘no,’ or a flat out ‘this’ or an absolutely certain ‘that.’”

Gomes wasn’t talking about electronic discovery, but he could have been.

For a profession that revels in convoluted codes and mind-numbing minutiae, lawyers and judges are queerly alarmed at the complexity and numerousity of ESI.  They speak of ESI only in terms that underscore its burden, never extoling its benefits.  They demand simple solutions without looking beyond the (often misleading) big numbers to recognize that the volume they vilify is mostly just the same stuff, replicated over and over again.  It’s a sad truth that much of the time and money expended on e-discovery in the U.S. is wasted on lawyers reviewing duplicates of information that could have been easily, safely and cheaply culled from the collection.  Sadder still, the persons best situated to eradicate this waste are the ones most enriched by it.   Once, I might have said “innocently enriched by it,” but no more.

The oft-overlooked end of discovery is proving a claim or defense in court. So, the great advantage of ESI is its richness and revealing character.  It’s better evidence in the sense of its more-candid content and the multitude of ways it sheds light on attitudes and actions.  Another advantage of ESI is the ease with which it can be disseminated, collected, searched and deduplicated.  This post is about deduplication, and why it might be attorney malpractice not to understand it well and use it routinely. Continue reading →

Sometimes you write something that strikes a chord and the hits go off the charts.  That’s a good day.  Other times, you pen something you’re proud of and the silence is deafening.  Two years ago, I wrote a column putting forward a Bill of Rights for E-Discovery that set out expectations and obligations of requesting parties.  As we used to say back in New York, “ya coulda hoid a pin drop.”  Since it fell flat before, you may wonder why I’d trot it out again.  Truth is, I still think it’s the germ of something worthwhile.  Perhaps I missed the mark, but someone needs to hit it; and I keep hoping it might be something like this: Continue reading →