Patel v. Havana Bar (E.D. Pa. Dec. 5, 2011) breaks no new ground in e-discovery, but it makes for interesting reading on several fronts.  First, it’s a prosaic personal injury case brought by a bar patron who suffered a severe fall, either because he was sober and the bar was negligent, or because he was wasted and the bar was negligent.  The plaintiff is uncertain of his sobriety, but he’s positive the bar was negligent.  The plain vanilla context is a reminder that the obligation of e-discovery competence runs to all counsel, even those who handle the bread-and-butter stuff that fills the dockets.  Second, the case presents dueling spoliation claims and bilateral sanctions.  Everyone gets slapped down!  Finally, the e-evidence at issue–FaceBook postings and video imagery–is a welcome respite from the usual squabbling over e-mail, and points up the variety of ESI that must be considered in setting a proper scope of preservation. Continue reading →

Earlier this year, I delivered the keynote address for a corporate event in Canada,  I called the talk, “Spoiled and Deluded: Ugly Truths about Electronic Search.”  I lamented how our happy experience with Google and online legal research has left us woefully unprepared (“spoiled”) for the extreme difficulty of search in e-discovery, then dashed a few misconceptions about the efficacy of searching ESI in accepted ways (“deluded”).  Dear Reader, we need to be brutally frank about search; because in a world where the organization of information has gone the way of the typewriter and file room, effective, efficient search is something we cannot manage without.

Search has two non-exclusive ways to fail: your query will not retrieve the information you seek and your query will retrieve information you weren’t seeking.  The measure of the first is called “recall,” and of the latter, “precision.”  We want what we’re looking for (high recall) and only what we are looking for (high precision).

Recall and Precision aren’t friends.  In e-discovery, they’re barely on speaking terms.  Every time Recall has a tea party, Precision crashes with his biker buddies and breaks the dishes. Continue reading →

There was an old farmer who always took the trophy in the fishing tournament with the biggest catch.  The new game warden became suspicious and demanded the farmer take him fishing.  In the middle of the lake, the farmer pulls out a stick of dynamite, lights it and throws it into the water.  Boom!  When hundreds of stunned fish float to the surface, the farmer takes out a net and snags the biggest one.  The warden is outraged.  “You can’t do that!” he screams, “Do you know how many laws you’ve broken?”  Calmly, the farmer lights another stick of dynamite, hands it to the game warden and says, “Well boy, you gonna talk or you gonna fish?”

Litigants look to lawyers for guidance in preserving electronic evidence, and lawyers, clueless about information technology, hand them a stick of dynamite and say, “go fish.” Continue reading →

While my wife trims the tree this lazy Saturday, I’m enjoying splendid articles by Mark Sidoti, chair of the Gibbons E-Discovery Task Force.  That job title gave me brief pause.  Oh, no! Have e-discovery costs driven corporations to outsource review to a shrewdness of arboreal apes?  As it turns out, Gibbons is a 230-lawyer firm in and around New Jersey (and, yes, a group of apes is really called a “shrewdness of apes.”  Don’t you just love the idiosyncracies of the English language?).

Sidoti’s EDD articles can be found on his bio page.  One of these discusses the decision in NVE, Inc. v. Palmeroni, where Judge Esther Salas (USDC DNJ) sanctioned the plaintiff for failing to take reasonable steps to preserve relevant ESI pertaining to  alleged breach of fiduciary duty by its former employee, Palmeroni.  The Court determined that the plaintiff’s obligation to preserve arose when it terminated Mr. Palmeroni’s employment–a time when, the court notes, “litigation was imminent.” Continue reading →

Once I went professionally to an archaeological expedition–and I learnt something there.  In the course of an excavation, when something comes up out of the ground, everything is cleared away very carefully all around it.  You take away the loose earth, and you scrape here and there with a knife until finally your object is there, all alone, ready to be drawn and photographed with no extraneous matter confusing it. That is what I have been seeking to do–clear away the extraneous matter so that we can see the truth–the naked shining truth.

This naturally got me thinking about the way we approach search in electronic discovery.  Continue reading →

I don’t know U.S. Magistrate Judge James L. Cott of the Southern District of New York.  I couldn’t even find a photo of him save the one at left singing with the Harvard Krokodiloes circa 1978.  But Judge Cott has my admiration and sympathy for a good decision that’s under attack by well-funded business interests who’ve picked the wrong case to rally their troops.

The truth is, in Pippins v. KPMG, it was KPMG’s poor presentation of the issues and evidence (ironic, as they’re one of the biggest e-discovery vendors in the trade) that left Judge Cott no option but to rule as he did–and surely the smart folks hired to condemn the decision know that.  But that’s not stopping the rush to pillory the magistrate.  One big firm commentator even called the result “stupid.” That’s just mean.

What really ticks off the big firm bar and Chamber of Commerce lobby is the fact the  judge didn’t simply rule and slink away.  No, His Honor had the temerity to explain why he couldn’t just incant “proportionality” and miraculously gloss over the glaring absence of factual and legal justification to support KPMG’s request to discard evidence. Continue reading →