Fahrvergnügen: eDiscovery in the Volkswagen Vortex

27VOLKSWAGENjp3-articleLargeSince 2008, Volkswagen programmed vehicles sold in the U.S. to falsify government emissions tests, enabling diesel VWs to spew forty times more pollutants than the law allowed.  I don’t even have to include the lawyerly qualifier, “allegedly,” because, after years of denials, misdirection and efforts to undermine investigations, Volkswagen has fallen on its sword and admitted its intentional misconduct.  It’s a breathtaking revelation in every sense of the word, and it’s going to drive a lot of American litigation…and e-discovery.

I thought we might get a jump on the discovery issues in terms of both the usual and unique challenges that Volkswagen and its suppliers, dealers and counsel face, as well as the discovery duties of the estimated 482,000 owners of affected vehicles in the U.S., many of whom are sure to file individual actions or join class-actions seeking damages or rescission.  Let’s not forget the regulatory and Congressional investigations that will ensue, and actions by shareholders and dealers.  Before it’s over, billions of dollars will change hands, some of it in court; and because this concerns software subroutines, electronic evidence is key.  Continue reading

Preservation and Proportionality

ThumbonScaleI wrote this four years ago, and didn’t post it. With the Rules amendments effective in just over two months, I thought it timely:

Litigants have been ignoring e-discovery obligations with impunity for so long they’ve come to think of it as an entitlement.  Protected from predators, few have evolved.  But now that opponents and courts are waking to this failure, those who’ve failed to adapt are feeling exposed. They don’t like it, and they want protection.  They call it “proportionality.”

Proportionality sounds wholesome and virtuous, like “patriotism” or “faith;” but like those wholesome virtues, it’s sometimes the refuge of scoundrels.

The much-ballyhooed “rise in sanctions” is designed to mislead.   The solid metrics we have on spoliation sanctions prove that the risk of being sanctioned for negligent non-preservation remains miniscule (.00675% per a report from the Federal Judicial Center).  Put simply: In the United States, you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI. Continue reading

Laying the Foundation for Effective Enterprise E-Discovery

frankfurtWith summer holidays and busy lives, I wouldn’t expect many to notice that BIYC has been quiet for six weeks while I’ve been working for a German client and living in Frankfurt.  I don’t know what it says about me that I have fallen head-over-heels for what many regard as the dullest city in Europe; but, I confess I find Frankfurt beautiful and captivating.  I’m sad to leave her behind as I return to the States in a few days.  I can’t say much about what I’ve been doing; but, it felt like a graduate course in corporate (and European) thinking respecting electronically stored information, privacy, regulation, litigation and the challenges faced by global business in identifying, preserving and producing ESI.

For all we tout “information governance” in articles and conferences, the global reality is that functional info gov is as rare as a good hair day for Donald Trump.  Even in industries where data retention is strictly regulated and extensive—like securities trading and banking—information implicated in discovery clumps and clusters hither and yon—some encrypted, some not—on legacy systems and media, as Notes mail and Exchange mail, within archives and hundreds of specialized applications and structured databases, as voice recordings on incompatible systems and loose documents on network shares.  But, these are mere technical hurdles, small next to the challenge of complying with internal corporate and IT policy, cross-border privacy laws and the risks and costly consequences of outsourcing IT.

All of this could be managed—even efficiently and cost-effectively—were it not for the knowledge gap that exists between the lawyers who demand and direct the work and those who do the actual preservation, collection and culling. Continue reading

Deduplication: Why Computers See Differences in Files that Look Alike

apples_orangesTexasBarToday_TopTen_Badge_SmallAn employee of an e-discovery service provider asked me to help him explain to his boss why deduplication works well for native files but frequently fails when applied to TIFF images.  The question intrigued me because it requires we dip our toes into the shallow end of cryptographic hashing and dispel a common misconception about electronic documents.

Most people regard a Word document file, a PDF or TIFF image made from the document file, a printout of the file and a scan of the printout as being essentially “the same thing.”  Understandably, they focus on content and pay little heed to form.  But when it comes to electronically stored information, the form of the data—the structure, encoding and medium employed to store and deliver content–matters a great deal.  As data, a Word document and its imaged counterpart are radically different data streams from one-another and from a digital scan of a paper printout.  Visually, they are alike when viewed as an image or printout; but digitally, they bear not the slightest resemblance. Continue reading

The Virtues of Fielding

fieldingI am a member of the Typewriter Generation.  With pencil and ink, we stored information on paper and termed them “documents.”  Not surprisingly, members of my generation tend to think of stored information in terms of tangible and authoritative things we persist in calling “documents.”  But unlike use of the word “folder” to describe a data directory (despite the absence of any  folded thing) or the quaint shutter click made by camera phones (despite the absence of shutters), couching requests for production as demands for documents is not harmless skeuomorphism.  The outmoded thinking that electronically stored information items are just electronic paper documents makes e-discovery more difficult and costly.  It’s a mindset that hampers legal professionals as they strive toward competence in e-discovery.

Does clinging to the notion of “document” really hold us back?  I think so, because continuing to define what we seek in discovery as “documents” ties us to a two-dimensional view of four-dimensional information.  The first two dimensions of a “document” are its content, essentially what emerges when you print it to paper or an image format like TIFF.  But, ESI always implicates a third dimension, metadata and embedded content, and sometimes a fourth, temporal dimension, as we often discover different versions of information items over time.

The distinction becomes crucial when considering suitable forms of production and prompts a need to understand the concept of Fielding and Fielded Data, as well as recognize that preserving the fielded character of data is essential to preserving its utility and searchability.

Continue reading

What America can Learn from E-Discovery in Australia

ed down underHow ya going, mate? That’s the customary greeting in the Land Down Under, and it encapsulates why I love coming to Australia for my annual talkabout. Oz is friendly and familiar, but (like its A/C outlets) just twisted enough to be ever interesting.  I’d happily use this space to gush about the luminous night sky in Bateman’s Bay or the polyglot of cultures in incomparably lovely Sydney; but, you didn’t come here for a Rick Steves travelogue; you want the down low on e-discovery where the water drains counterclockwise.

In contrast to our British cousins–who are content to cede e-lunacy to the Yanks–Australians aspire to the American e-discovery experience.  Of course, Aussies met at e-disclosure and information governance confabs tend to earn their livings from e-discovery, and understandably envy America’s digital profligacy.  But, there’s more afoot than just dollars.  A segment of the Australian legal community “gets it” in ways I only dream of seeing back home.  And much like America, those who get it have had little success bringing along those who don’t.   Continue reading

Riley Cell Phone Decision a Red Herring in E-Discovery

barbed wireYesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014) to civil discovery.  I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in RileyContinue reading

Girding for the E-Savvy Opponent

gird2I am in Great Britain this week addressing an E-Discovery and Information Governance conclave, joined by esteemed American colleagues and friends, Jason Baron and Ralph Losey among other luminaries.  My keynote topic opening the conference is Girding for the E-Savvy Opponent. Here is a smattering of what I expect to say.

I arrived in London from Budapest in time to catch some of the events for the 70th anniversary of VE Day, marking the hard-won victory over Germany in the war that shortly followed the war that was to have ended all wars.

As we sported poppies and stood solemnly at the Cenotaph recalling the sacrifices made by our parents and grandparents, I mulled technology’s role in battle, and the disasters that come from being unprepared for a tech-savvy opponent.

It’s said that, “Generals are always prepared to fight the last war.” This speaks as much to technology as to tactics.  Mounted cavalry proved no match for armored tanks.  Machine guns made trench warfare obsolete.  The Maginot Line became a punch line thanks to the Blitzkrieg. “Heavy fortifications?  “No problem, mein schatzi, ve vill just drive arount tem.”

In e-disclosure, we still fight the last war, smug in the belief that our opponents will never be e-savvy enough to defeat us. Continue reading

Is There a Right to Fail in E-Discovery?

FAILDisagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the “v.”  Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties.  That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and “discovery about discovery” is vilified as a diversionary tactic, a modern take on the maxim, “if you can’t try the case, then try your opponent.” Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right.  Perfection is not the standard.  But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery?  Must we wait until the autopsy to question the care plan? Continue reading

Preservation Platitudes: Tips for Defensible Legal Hold

balljarI did a free webcast today for OLP, billed as “Top Tips for Preservation.”  If you missed it, they will make it available to members online.  Although I spent much of my time addressing challenges unique to preservation of mobile devices like iPhones and tablets, I was faithful to the title and shared nine tips I termed “Preservation Platitudes.”  None break new ground, but I hope at least a few count as sensible advice:


Be Prepared to Preserve

READY: Have a preservation plan.
SET: Invest in preservation readiness.

GO: Do something.  Do it now.

You need to have an action plan at hand for any case that comes in.  There are sources of information and preservation obligations that cut across all matters and apply to those on both sides of the V.  If you wait until the case comes in to develop the framework of a defensible preservation plan, you subject the client to needless risk. Clients don’t pay us to learn on their nickel.  They pay us to know–or at least to know how to get started.

Preservation readiness means having strategies and resources to draw on, so as to be able to hit the ground running.  It might be training someone in IT to be competent in forensically sound imaging techniques and chain-of-custody documentation.  Or, it could be having established relationships with IT and service providers.  A professional knows who to call and has a sound sense of what it will cost.

Many failed preservation efforts come about because someone dithered.  They hoped that the case would settle.  They assumed it was someone else’s job.  They failed to act when action could have saved the day and lowered the cost considerably.  Do something.  Ideally, the right thing. Continue reading


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