Happy E-Discovery Day!

e-discovery-day-2016As I stow the turkey platter and box up the pilgrim décor, I’m reminded that it’s time once more to celebrate E-Discovery Day, TODAY, Thursday, December 1.  No doubt, you’re saying, “So SOON?!?!  I still haven’t retrieved those E-Discovery Day 2015 balloons that got loose in the atrium, and who’s going to eat all that E-Discovery Day Kringle taking up space in the office freezer?” (Special-ordered from Racine in the traditional e-discovery flavor, Cinnamon, TIFF and Tears™).

I know.  Already?  We don’t even have new Federal rules this time!  Judges are still exercising discretion when meting out sanctions for spoliation, and proportionality is back on top, though no one knew it was gone!

But, as the E-Discovery industry has thoughtfully fashioned a holiday to fill the tedious weeks between Thanksgiving and Christmas/Chanukah/Kwanza, let’s warm the wassail, join hands and lift our voices in celebration for those few cherished hours that are E-Discovery Day.  Remember: there’s still time to shop for the perfect E-Discovery Day gift, and as a tip, Ralph “Gimpy” Losey has a new $100 book of reprinted blog posts, perfect for the e-discoverer on your list still stymied by the web browser.  (Get well soon, Ralph!)

Let me invite you to begin your fun-filled E-Discovery Day at the non-intuitive time of 11:15 am eastern/8:15 am pacific TODAY, Thursday, December 1, 2016, by listening to a panel comprised of Robert Cruz, Tara Jones, Zach Warren and Yours Truly discussing Mainstream News & E-Discovery: What You Should Be Watching Out for in 2017. Per our hosts Actiance and Exterro, we will be recapping “what news events you should be tracking and proactively advising your legal team on to ensure you’re prepared to take on new e-discovery risks in 2017.”

In truth, we will be talking about a plenitude of topics that pop into our heads, including how e-discovery in 2017 will not even slightly resemble e-discovery in 2016.  Thanks to automation, TAR 42.0, automobile telematics, deeply-buried ABA commentary and easy-to-apply proportionality standards, you won’t even have to show up at work anymore.  Instead, you’ll just tell Alexa, Siri, Cortana and Hey Google, “Get me the non-privileged e-stuff,” and it will be done in seconds for a pittance.  But, sadly, if you miss our webcast (and the hours of fine programming that follow), don’t be surprised if e-discovery in 2017 looks to you, the uninitiated, just exactly like e-discovery in 2016.

Later today [4PM EST / 3PM CST / 1PM PST], I’m doing another webcast, this one for Nuix, entitled, The Tipping Point of New Technology in Discovery.  The topic grows out of an essay posted here on October 19, 2016 wherein I addressed proportionality considerations when weighing the cost and accuracy of automated transcription and translation tools in e-discovery.  Put simply, for inexpensive technologies that displace manual processes, how inaccurate can such technologies be before the savings won’t defray failure?  I’ll be speaking from New Orleans, and the discussion will be led from Sydney by Nuix’ Angela Bunting.  I’m joined on the panel by Judge Xavier Rodriguez (USDC WDTX) in San Antonio and Scott Cohen of Winston & Strawn in New York.  This promises to be a lively talk!  Please stop by.

There’s a lot of really good content coming your way for free TODAY. Don’t miss it.

Happy E-Discovery Day to You and Yours!

E-Discovery Lessons from the Huma Abedin E-Mails

comey

I’m livid about FBI Director James Comey’s handling of the Huma Abdein e-mails. “Reckless” doesn’t begin to describe Comey’s self-indulgent decision to release information about a situation he clearly does not yet grasp, in a manner that elevates Jim Comey above longstanding Justice Department policy and the integrity of a Presidential election.  Mr. Comey’s justification is couched entirely in his personal predilections, not those of the Bureau or Justice.  It is all “I, I, I” and none of  “we the Bureau” or “we the Justice Department.”  Mine is a procedural objection, not a political one. Whatever my glee at seeing Trump exposed for the weasel I know him to be, I would be every bit as critical had Comey’s half-baked announcement concerned Trump’s e-mail as Clinton’s.  But, Comey’s folly is an opportunity to glean some e-discovery insight.   Continue reading

Proportionality and Emerging Technologies

angela-buntingIn the wee hours last evening, I received a question posed by Angela Bunting with Nuix down in Sydney, Australia.  Angela has such deep knowledge of e-discovery above and below the Equator that I was flattered to be queried by someone I’d go to for guidance.  It was a magnificent hypothetical question.

Angela posited a scenario where a producing party used emerging technolgies to either mechanically translate foreign language text to English or voice recordings to text.   In each instance, the quality of the resultant searchable text was poor, akin to bad OCR, and characterized by poor searchability due to malformed and missing words, misleading substitutions, etc.  As a  consequence of  this poor searchability, some documents that should have been produced were not and, to make matters worse, the requesting party had some of the omitted documents, so could readily demonstrate serious flaws in production.

Challenged by the requesting party, the producing party defends the use of the automated transcription or translation based on proportionality.  To do the same work any other way would have required use of costly and time-consuming manual labor.

So, there you have it: the automated approach was faster and cheaper, but also much less accurate and complete, resulting in a failure to produce non-privileged responsive material.

Angela asked what I believed the view of the courts might be in such a situation?  Would the Court require the work be done again using a more accurate, more expensive method? Might sanctions issue?  Would the Court excuse the failure based on proportionality?

Predicting what courts will do based on skeletal hypotheticals is a crap shoot.  Outcomes turn on the peculiar facts of each case and, when the issue is e-discovery, on counsels’ skill in acquainting the judge with the technical underpinnings.

But, I gave it a shot, and here’s my reply:

Continue reading

The Upside of Error in E-Discovery

i-want-honestThis is a peculiar post in that it’s not an essay with a takeaway so much as a cerebral beach ball tossed to the crowd in hope that readers might enjoy batting it around (in comments below or over cocktails at the next e-discovery confab).  My proposition is that error, particularly inadvertent production occurring as a consequence of human carelessness, is a useful hedge against obstruction. Put another way, producing parties have become so adept at or inured to confounding e-discovery that a producing party’s mistakes are now our main–and perhaps only–means to uncover abuse.  I further posit that, although the shift to technology-assisted review is driven principally by cost savings, its incidental “benefit” to producing parties lies in its ability to stem inadvertent productions serving to reveal discovery abuse.

I concede that’s a cynical proposition, and I dearly wish it weren’t so dour; but, I’ve been litigating for 35 years, a third of that time dedicated to unspooling failed and abusive e-discovery efforts as Special Master.  Judges don’t ask me around to admire discovery efforts done right; I’m invited to disaster areas.  When I was counsel for injured parties in products liability and negligence matters, I lived the grind of forcing opponents to surrender information that helped my clients.  It was never easy; it can shake your faith.

Then and now, opponents fancifully characterized damaging information as privileged or decided that the author of the inculpatory e-mail or memo didn’t really mean what he or she plainly said.  Lawyers and clients will withhold damaging responsive data based on a tortured interpretation of a request or by the slender reed of a boilerplate objections: “Vague!” “Overbroad!” “Unduly burdensome!”  Lawyers have a remarkable capacity to rationalize failures to produce responsive material in discovery.  Continue reading

Crafting the “Perfect” Legal Hold Notice

perfect-preservation-noticeEach September for the last four years, I’ve had the pleasure to participate in a splendid e-discovery conference in Portland, Oregon called PREX, so-called because the whole event is devoted to PReservation EXcellence.  It’s sponsored by Zapproved, but unlike other developer events, it’s less a celebration of self than a product-neutral effort to promote better practices in mounting a defensible enterprise legal hold.  A bevy of prominent judges and thought leaders turn out to speak; but, the real star of PREX is Portland itself, resplendent in those precious, late-Summer weeks when one can count on abundant sunshine.  If you’re looking for fine, fun education in excellent company, pencil PREX in for  September 13-14, 2017.  There’s no better time to visit Oregon, and no better event on the topic.

One of the panels this year was “The Perfect Preservation Notice.”  I suspect I was asked to join because I’d written a widely-circulated paper many years ago called, “The Perfect Preservation Letter,” wherein I explored the desirable elements of the letter one should send to an opponent affording notice of ESI sought preserved in anticipation of electronic discovery.  My title was tongue-in-cheek, as there’s no such thing as a perfect “form” preservation letter, a point I made as counterpoint to composer Steve Goodman’s claim to have written the perfect country and western song by virtue of the lyric,

“I was drunk the day my mom got out of prison
And I went to pick’er up in the rain.
But before I could get to the station in my pickup truck,
She got runned over by a damned ol’ train.”

                Song: “You Never Even Called Me by My Name

My message was that, though perfect isn’t the standard, neither is lousy.  We can approach perfect by a modicum of thought and incorporating a few essential elements.   Continue reading

Six Powerful Points for Better Presentations

powerpersuasionIn my law practice, I use PowerPoint more frequently than Word.  Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand.  PowerPoint isn’t a word processor; it’s a visual presentation tool.  You can fill slides with text as you might a word-processed document, but when you do that, you’re killing the power of PowerPoint.

Text documents are pro se.  They speak for themselves.  Presentations benefit from the presence of a narrator, i.e., you sharing your message.  An effective presentation supports your message.  It’s your ally, not your competitor.  Human brains are challenged to simultaneously read text and listen to words.  Written text doesn’t reinforce spoken text; it competes with it.  Our language centers are overwhelmed trying to process both spoken- and written words.  The result is a breakdown in comprehension and retention.  That breakdown is worst when a presentation proceeds at the brisk pace best required to hold attention.  And we need an audience’s attention. Attention is the hardest thing to grab and hang onto in this time of ubiquitous screens and constant connection. Continue reading

Milestone

sotomayorI’ve just returned from a quick trip to San Juan, Puerto Rico.  I travelled there to deliver a three-hour presentation on e-discovery as part of a day of education commemorating the 50th anniversary of Article III federal courts on the island.  It’s a trip that’s been in the works for some time, and an event about which I was more than usually anxious and discreet. Part of my anxiety stemmed from three hours being a LOOOONG time for an audience to listen to one voice, especially when the topic is somewhat esoteric and technical.  My time slot was the three hour block smack in the middle of the day.  Too, there were more than 500 people in attendance, and I wanted it to be the performance of a lifetime.

But the principle reasons for my anxiety weren’t the numbers in attendance or the fact that the luminaries attending were a constellation of island leaders, including, the entire federal bench, several justices of the Puerto Rican Supreme Court, the Attorney General and a huge chunk of the federal bar–really the cream of the profession in any jurisdiction.

I was keyed up because of the other out-of-town speakers flanking my talk.  It was the most “rock star” program of my life–and I’ve done almost 1,800 presentations at programs of this nature.  The speaker immediately preceding me was James Comey, the Director of the FBI and the speakers following me were U.S. Supreme Court Justice Sonia Sotomayor and First Circuit Chief Judge Jeffrey Howard.  My solo time at the podium was as much as all of their times put together.  Yikes! Continue reading

The Internet of Things Meets the Four Stages of Attorney E-Grief

IoTI lecture about 50-70 times a year, all over the globe.  Of late, my presentations start with an exploration of the Internet of Things (IoT), focused first on my own IoT-enabled life and then addressed to the proliferation of IoT data streams in all our lives.  Apart from mobile phones–the apex predators of IoT–discovery from the Internet of Things remains more theoretical than real in civil litigation; and instances of IoT evidence in criminal prosecutions are still rare.  That will change dramatically as lawyers come to appreciate that the disparate, detailed data streams generated by a host of mundane and intimate sensors tell a compelling human story.

With every disruptive technology, lawyers go through the Four Stages of Attorney E-Grief: Denial, Anxiety, Rulemaking and Delusion.  I considered a stage called “Prattle,” but that hit too close to home. Continue reading

Cross-Matter & -Vendor Message ID

md5At last week’s ILTACON in Washington, D.C., Beth Patterson, Chief Legal & Technology Services Officer for Allens in Sydney asked a panel why e-discovery service providers couldn’t standardize hash values so as to support identification and deduplication across products and collections.  If they did, you could use work from one matter in another.  If an e-mail is privileged in one case, there’s a good chance it’s privileged in another; so, wouldn’t it be splendid to be able to flag its counterparts to insure it doesn’t slip through without review?

Beth asked a great question, and one regrettably characterized by the panel as “a big technical challenge.”

One panelist got off on the right foot:  He said, “I’ve created artificial hashes in the past where what I had to do was aggregate and normalize metadata across different data sets to create a custom fingerprint to do that.”  But, he added, “that’s probably not defensible, and it’s also really cumbersome.”

Pressed by Beth, the panel pushed back.  “It’s because artificial hashes are kind of complicated,” one panelist offered, and not “a trivial technical problem.”  The panel questioned whether MD5 hashes were the appropriate standard or whether SHA-1 would be required, positing that cross-matter deduplication is “something that requires significant buy-in across a broad spectrum of people.”  Beth’s request was ultimately dismissed as “not an easy challenge” and one that would be confounded by “people, process and technology” and “the MD5 hash stuff.”

ILTACON is the rare venue where reasonably well-adjusted and -socialized people engage in lively discussions of such things.  It’s not just that ILTA folks understand the technology issues (“GEEKS!”), we’re passionate about them (“NERDS!”) and debate them respectfully as peers (“WUSSIES!”).

Beth’s idea deserved more credit than it got.  It really is a trivial technical problem, and one that could be resolved without much programming or politics. Continue reading

A Glimpse of China: Prosperity and Purpose

This essay isn’t about electronic evidence; so, if that’s what you came for, sorry.  I just had to spout off somewhere about China.

Most who know me know my lifelong passion for travel.  An astonished, “you’ve been everywhere,” often ends conversations that start, “where have you traveled?”  But, there are places I’ve missed around the globe, and until now, one of those was mainland China.  I’d been to Hong Kong; but, not all think that going to Hong Kong is the same as going to Big Red.

I expected China would be crowded, dirty and grim, like Roman Polanski’s Chinatown, but bigger.  I grew up with images of Communist China: Chairman Mao and missiles on parade: platoons of children marching in khaki with boxy green caps and red stars.  I imagined meals of chicken feet and fish eyes, lots of pagodas and poverty, and street’s teeming with bicycles.  Boy, did I miss the sampan on modern China!

I’ve been on the move in China for a couple of weeks, and am challenged to find suitable superlatives to describe this miracle of progress and prosperity.  I have t-shirts that are older than the thousands of soaring skyscrapers scaling the magnificent city skylines of Shanghai, Xi’an and Chongqing.  Shanghai alone has over 2,000 buildings above forty stories that were built since 2000.

And what fantastic buildings! Continue reading