Slippery Slope: Harrell v. Pathmark

slipnfallOne e-discovery blog I never fail to read is Doug Austin’s eDiscoveryDaily.  It’s hard to come up with a post every day; yet, Doug makes it look easy.  Each post is a quick read with little editorializing; and, Doug faithfully includes a link to the opinion.  That last may seem a small thing; but, some bloggers don’t do it (or only share the full text of the decision with paying customers). There’s no substitute for reading the case.

Today, Doug posted on Harrell v. Pathmark, (USDC EDPA, February 26, 2015), where the Court dismisses the plaintiff’s slip-and-fall injury claim on summary judgment.  I don’t think the Court got it wrong on the merits; but, in weighing in, sua sponte, on the e-spoliation issue, I’m reminded of the maxim, “hard cases make bad law.”  Slip-and-fall cases must be some of the hardest cases around because the law often seems to lose its footing when it comes to the failure to retain video evidence in these disputes. Continue reading

ESI Observations on a Pretty Good Friday

demonbunny2Though each merit their own post, I’ve lumped two short topics TexasBarToday_TopTen_Badge_Smalltogether.  The first concerns a modest e-discovery headache, being the cost, friction and static posed by GIF logos in e-mail. The second is a much uglier vulnerability hoppin’ down the bunny trail toward you right now; but rejoice, because you may still have time to avert disaster.  Continue reading

Too Many Notes: In re: Lithium Ion Batteries Antitrust Litigation

toomanynotesThe core challenge of discovery is identifying information that is responsive but not privileged, achieved without undue burden or expense.  There are multiple ways to approach the task, none optimal.

The most labor-intensive method is called “linear human review,” where lawyers (for the most part) look at everything and cull responsive and privileged items.  It sufficed in the pre-digital era when much effort and resources were devoted to recordkeeping, which insured that information had a “place.”  Despite being costly, slow and error prone, linear review was all we had, so became the gold standard for identifying responsive and privileged information.

With the advent of personal computing, the internet and mobile devices, virtually all information today takes digital electronic forms that may be searched electronically.  Digitized textual content, whether obtained by applying optical character recognition (OCR) to hard copy or by utilizing native electronic sources, makes it possible to find potentially responsive or privileged material by comparing text strings within documents to search terms expected to coincide with responsive or privileged content.  Moreover, digital data always corresponds to a complement of digital metadata, viz. information that describes data’s location, nature and characteristics and that aids in the search, organization, interpretation and use of data.

As data volumes grew, text search and metadata culling became the new touchstones by which information was deemed potentially responsive and potentially privileged, usually as a precursor to manual assessment.  Search terms, either by themselves or in logical phrases called Boolean queries, were deployed against the text within each document or more commonly against a concordance index built from extracted text.  Items not making the keyword cut for responsiveness tended to be deemed not discoverable and afforded no further consideration. Continue reading

UF E-Discovery Conference: One More Bill Hamilton Contribution

Bill HamiltonWhen I think of the people who make good things happen in e-discovery education, William “Bill” Hamilton tops my list.  Bill is the National E-Discovery Partner at Quarles & Brady in Tampa. Bill speaks frequently and has penned a number of helpful articles on e-discovery (including one I use in my law school course).  But, it’s Bill’s catalytic energy and enthusiasm on behalf of practical e-discovery education that impresses me most.  Bill created the first and only forum for adjuncts teaching e-discovery in law schools, allowing us to exchange ideas and assist one-another.  Bill founded the University of Florida Law School’s E-Discovery Project that brings distinguished speakers to central Florida (most recently Judge John Facciola). As Dean of Graduate Students at Bryan University, Bill built its Electronic Discovery Project Management Certificate program.  I could go on, but Bill is a modest man, and I’m sure he would prefer I get to the point of this post: yet another Bill Hamilton contribution to practical e-discovery education, this one to aid both practitioners and students. Continue reading

The Conundrum of Competence in E-Discovery: Need Input

NeedInputlitigationworld-200I frequently blast lawyers for their lack of competence when it comes to electronic evidence.  I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.

So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct.  And I am, a little. Requiring competence is just part of the solution to the competence crisis.  The balance comes from supplying the education and training needed to become competent.  You can’t just order someone who’s lost to “get there;” you must show them the way.  In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.

The legal profession is dominated by lawyers and judges.  I state the obvious to expose the insidious: the profession polices itself.  We set the standards for our own, and our standard setters tend to be our old guard.  What standard setter defines himself out of competence?  Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.

These laudable efforts just say “get there.”  They do not show us the way. Continue reading

Ten Tips to Clip the Cost of E-Discovery, Revisited

clip costsThis is the fifteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Ten Tips to Clip the Cost of E-Discovery

[Originally published in Law Technology News, September 2006]

E-discovery costs less than paper discovery.  Honest.  In comparable volumes, it’s cheaper to collect, index, store, copy, transport, search and share electronically stored information (ESI).  But we hoard data with an indiscriminate tenacity we’d label “mental illness” if we were piling up paper.  It’s not just that we keep so much; it’s that our collections are so unstructured.  Squirrel away twenty years of National Geographic with an index and you’re a “librarian.”  Without the index, you’re that “crazy cat lady.”

So the number one way to hold down the cost of e-discovery is: Continue reading

Ennui: Have We Grown Weary of e-Discovery?

ennui2I love the word “ennui” (pronounced on-we)  It’s from the French for vexing and describes a feeling of languor, lassitude and listlessness.  It speaks of an agitation and weariness born of having seen it all before.  I picture artists and writers from the Belle Époque or the Crawleys of Downton Abbey before the Great War.  “Bring the smelling salts, Carson. Her Ladyship has the vapors again.”

“Ennui” aptly describes what I’m seeing in the e-discovery world.  We are bored with e-discovery.  It hasn’t gone away, as some foolishly imagined it might.  Most have endured rather than embraced e-discovery.  The level of discourse about sources and process isn’t much higher than it was a decade ago despite the ascendency of social networking, Cloud computing and mobile devices.

E-discovery didn’t get old because lawyers mastered it and moved on.  It got old because lawyers found that they could get by doing what they’ve always done, spending more to deal with familiar forms of evidence and ignoring the rest.  Look at a Request for Production in use now and compare it to one from ten- or twenty year ago.  Is it all that different, or have we simply tossed “e-mail” or “ESI” into our tedious definitions of “Document?”

The sense of ennui is most palpable when I’m working with others to plan e-discovery education.  E-discovery conferences today are as apt to include sessions on cybersecurity, privacy or Information Governance as on e-discovery.  Those are fascinating topics in their own right; but, they aren’t the topics we must master to succeed in e-discovery.  We have allowed the novel topics to displace the core topics in e-discovery education because so many are bone-tired of hearing about preservation, legal hold, meet-and-confer, cooperation, search, review, forms of production, and the rest.

Plus, apart from predictive coding and all those emerging sources of ESI we’d rather ignore, there isn’t much new or exciting to get our juices flowing.  The sky hasn’t fallen on the people who didn’t learn e-discovery (sanctions are ridiculously rare), and when the amended Federal Rules of Civil Procedure kick in later this year, you need hardly fret about sanctions at all.  If the other side can’t show wilful destruction of ESI intended to shield it from discovery, you’re nearly bulletproof.

As the ennui settles in, we see fewer opportunities emerging for practical instruction on e-discovery: fewer “how to” courses, fewer law school classes, less in the way of “hands on” instruction and virtually no “next level” training.

Ennui.  We have grown weary of e-discovery.  It never interested most lawyers, and now it hardly excites any.

If you are reading this blog, chances are, I’m not talking about you.  You grasp the power of electronic evidence.  You still find this stuff pretty thrilling, and love learning about and sharing your knowledge of ESI.  The good news for us is that this season of ennui, like the winter storms plaguing much of the U.S., won’t last forever.  The sun will again shine on e-discovery education, and we will be warmed by the enthusiasm of a new generation of lawyers so thoroughly jacked into the net and databases that they will know to look there first when seeking evidence.  They will welcome the chance to learn how to do e-discovery well and cost-effectively.  They will revel in the way it will help them win; for ignoble or not, winning is what moves trial lawyers most.

Until then, can you please ask Carson to bring back those smelling salts?

Ten Common E-Discovery Blunders, Revisited

ignorance is optionalThis is the fourteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Ten Common E-Discovery Blunders

[Originally published in Law Technology News, August 2006]

A colleague recently asked me to list 10 electronic data discovery errors lawyers make with distressing regularity. Here’s that list, along with suggestions to avoid making them: 

  1. Committing to EDD efforts without understanding a client’s systems or data
    It’s Russian roulette to make Electronic Data Discovery (EDD) promises when you haven’t a clue how much data your client has, or what and where it is.  Instead, map the systems and run digital “biopsies” on representative samples to generate reliable metrics and gain a feel for how much are documents, e-mail, compressed files, photos, spreadsheets, applications and so on.It matters.  A hundred gigabytes of geophysical data or video may be a handful of files and cost next to nothing to produce.  The same 100 gigs of compressed e-mail could comprise tens of millions of pages and cost a fortune.
  1. Thinking you can just “print it out”
    Even if you’ve the time and personnel to stick with paper, is it ethical to subject your clients to the huge added costs engendered by your unwillingness to adapt?  And remember that, in 2015, printing ESI to non-searchable, static TIFF images isn’t much better or cheaper than printing it out.

Continue reading

Do-It-Yourself Digital Discovery, Revisited

keep-calm-and-do-it-yourselfThis is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Do-It-Yourself Digital Discovery

[Originally published in Law Technology News, May 2006]

Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client.  Like the dog that caught the car, they weren’t sure what to do next.  Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost.  They wondered: Did they really need an e-discovery vendor?  Couldn’t they just do it themselves?

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats.  “Guard the chain of custody,” I want to warn.  “Don’t mess up the metadata!  Leave this stuff to the experts!”  But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, “Sorry, the courts are closed to you because you can’t afford e-discovery experts.”

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end.  We’ve got to deal with electronic evidence in small cases, too.  Sometimes, that means doing it yourself. Continue reading

Surveys are a CURSE in E-Discovery

supid surveyThis is a rant.  So, it will be mercifully short and posted on the weekend when few stop by.  I’m fed up with e-discovery surveys.  I mean those ersatz “studies” that solicit opinions about things that could be measured but aren’t, polling those sufficiently underemployed to respond and tallying and touting their responses as if they signified more than attitudes and prejudices.

Surveys have almost entirely displaced measurement in e-discovery.  When you scratch the surface of the many so-called studies of e-discovery that aspire to an academic aura, they’re just studies of surveys of attitudes.  No statistical rigor can make a lot of wild ass guesses anything more than a lot of wild ass guesses.  The studies do a decent job documenting what people think might be fact, but tell us nothing about fact because guesses about measurement are not the same as measurement. No, not even when you gather many guesses.

The Blair & Marron BART document study famously showed us that perception of e-discovery outcomes and measurement of those outcomes diverge markedly.  Polls don’t tell us where the money goes in e-discovery; and, why should we be surprised by this?  A poll of ancient Greek scholars could have “proven” the flatness of the Earth.  Seventy-seven percent of Americans polled believe angels are real and among us.  People believe what suits them; but, smart people believe what they can measure.

My point is this:  when it comes to e-discovery, virtually everything we hear—certainly every study of EDD cost I’ve ever seen—is based on processes wholly devoid of real measurement.  Authors tally up guesstimates from surveys then pass them off as scholarship.  It’s like taking tranches of bad mortgages and securitizing them as triple-A paper.  We all know how well that worked.

So, enough with the silly surveys!  They’re tired.  They’re useless.  They’re bunk.  Let’s try defining and measuring to arrive at numbers that mean something.  We’re not playing Family Feud here.  I don’t want to know what the survey says.  I want genuine metrics.


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