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 →

There’s been a lot of fuss and bother about the Da Silva Moore decision by Judge Andrew Peck, much of it fomenting the notion that a federal magistrate judge (approved) (required)(made mad passionate love to) predictive coding in a case.  I kept my own counsel until now because a judge going along with something the parties had already agreed to do struck me as something less than a jurisprudential watershed.  The question presented to the court was not whether an e-culling tool would be employed but how.  That is, the kids weren’t fighting about whether to play the radio but only about how to set the volume and station.  They took their quarrel to Dad, and now the kid who didn’t get his way is saying Dad played favorites.

The plaintiffs, whose QA and sampling values were rejected, have every right to complain about the metrics.  Where predictive coding is concerned, the devil is very much in the details.  But their pairing of valid concerns with a sleazy personal attack on the judge has to be one of the dumbest moves to come down the e-discovery pike since Creative Pipe named its line of stolen garbage can designs FUVISTA (for F*** yoU VIctor STAnley).  It puts the duh in Da Silva Moore. Continue reading →

We are the transitional generation in terms of the shift from discovery in a world geared to information on paper to one where paper is largely an afterthought.   An airline boarding pass is a screen shot of a bar code, gate, time and seat number.  We print it in case TSA can’t scan our phone, then trash it when we touch down.

Growing up, the organization of information on paper was so ingrained in our education that we take our “paper skills” for granted even as paper has all-but-disappeared.  We learned to color inside the lines.  Put our name and the date at the top of our papers.  Organize alphabetically.  Staple and paper clip.

We learned the structure of a “business letter.”  Date and subject go here, salutation there, and don’t forget the CC: and BCC: addressees at the bottom.

All of it marched more-or-less seamlessly into a common culture of paper records management.  Correspondence flowed into files, folders, drawers, cabinets and file rooms.  Everything had a place, and everything depended upon information being in its place.  That is, everything depended upon organizing information from its creation and all along its path until it found its semi-permanent place in the storage and retrieval system.

As information went digital, we clung to metaphors of records management.  The screen icons remained files, folders and even envelopes.  But while we pretended digital information was still like paper, our culture of records management collapsed.  The fleeting phone call and the enduring business letter and “memo to file” all morphed into e-mail.  Subject lines ceased to reliably describe contents.  File clerks became baristas and file rooms became server rooms.  Everyone was left to their own devices—literally—in terms of information management.  Computerized search, they promised, would do away with all that pesky management of documents.

And, in many ways, the promise was kept.  We draw on vast reservoirs of information using search tools of such instantaneous ingenuity and complexity that we rarely reflect on what transpired for us to find that Chinese restaurant in San Francisco or convert U.S. Dollars to Brazilian Reais at market rates.  We’ve been content to leave it to the geeks.

And there’s the nub of the problem in e-discovery.  As information stopped being like paper records and everything became databases, lawyers were content to leave organization to the geeks.  We can’t imagine a competent lawyer not knowing how to find a document in a file folder or cabinet; yet, oddly, we can’t imagine a lawyer knowing how to fashion a competent ESI search protocol or query a database.  We barely expect lawyers to know what ESI protocols and databases are.  We’ve set the bar too low for the Bar, and clients and judges are suffering as a consequence. Continue reading →