It will come as no surprise to readers that I cleave to simple credos when it comes to litigation and e-discovery, viz.
- Most evidence today is digital. It’s powerful, persuasive and pervasive.
- Being a lawyer is a privilege; our competence is the least clients deserve.
- Trial lawyers should be competent in matters of evidence and discovery.
- Competence in evidence entails competence in e-evidence.
- Competence in discovery entails competence in e-discovery.
- You’re not competent in e-evidence or e-discovery if you ignore the “e.”
- Knowing the law is one thing. Attorneys are smart and can learn a second thing.
- Attorneys trade in information; that “second thing” should be information technology.
These are inarguable assertions in my mind; but, somehow, they remain controversial in practice. The controversy endures because of the equally inarguable fact that those who set the standards for lawyer competence will never draw the circle of competence in such a way that they are left standing outside of the circle. If it were important to know, they reason, they would already know it. Discouraging.
But things will change, and when they do–when lawyers wake to the power of ESI–they will want materials that teach the “e,” not just the discovery. They will want materials written by lawyers, for lawyers.
I’ve been laboring to contribute some of those materials for many years; so long, in fact, that I’m chagrinned by how dated some of my early writings feel. Back in 2009, I wrote a long essay–a primer really– for the Georgetown E-Discovery Institute, back when there was still a plenary technical topic covered during that storied event. It was a primer on backup systems, which were still pretty central to high-profile e-discovery disputes back then. Over the years, I’ve written lawyer-friendly technical primers on computer forensics, e-mail systems and databases to accompany other Tech Focus sessions at Georgetown, before the heresy of teaching information technology to lawyers at the Institute was recognized as being less promising than, say, teaching a pig to mambo. These primers, too, were getting long in the tooth and just felt, well, tired.
So, today, I spent the whole day extensively rewriting and updating the primer on backups. It’s now called the Luddite Lawyer’s Guide to Backup Systems, and I’m happy to put it back out there, fresh for 2016. In addition to updating it to reflect the state-of-art in backup techniques and media, I added some nifty new stuff and graphics, like this colorful illustration to accompany my explanation of the difference between differential and incremental backups:
I also came up with a formula to calculate the real world transfer time for backup tapes and compiled and included a list of the values needed to plug into the formula for just about every format of backup tape used for the last thirty years:
I wrapped up the rewrite by adding ten practice tips for dealing with backups in civil discovery.
If you’re interested in digging into what makes backups go, and how to address them in civil discovery, I hope you give the latest Luddite Lawyer’s Guide a peek. You don’t have to be a Luddite; but if you are and read the primer, there’s good chance you won’t be able to call yourself a Luddite anymore. Feedback welcome. Criticism encouraged. Thanks.