William P. Butterfield, Champion of Just Discovery

butterfield_web-1Bill Butterfield died on Tuesday, December 13 after a brief, silent battle with cancer.  He was a good man and an exemplary attorney.  Knowing that I will never meet him again, I mourn that I cannot know him better.   I know well Bill’s tireless efforts to protect every litigant’s right to obtain full and fair discovery.  His was a revered and respected voice at The Sedona Conference, where he stood against multitudes who would cripple our right to seek the truth that lives in electronically-stored information.  Bill employed canny strategies that the naysayers couldn’t match: He was sensible, practical, courteous and kind.  Bill listened.  He considered, and he contributed.  Bill was a worthy opponent to many, an enemy to none.

Exactly five years to the day before he died, Bill testified before a subcommittee of the House Judiciary Committee concerning electronic discovery.  I watched Bill’s testimony and saw the poise and candor that distinguish a good advocate from a great one.  I was invested in Bill’s success as he’d done me the honor of seeking my thoughts about his testimony the weekend prior.  We had a nice chat, and I shared a memo with talking points afterward that he encouraged me to publish.  I was pleased to see Bill touch on those points in his Congressional testimony, but I don’t imagine they were mine alone.  Bill knew e-discovery as well as anyone, and I expect he sought advice from many who till this field.  He was wise that way.

I am flattered as well that Bill sought to engage me in his cases on several occasions.  For one reason or another, I had to decline each time; so, now I rue having missed the opportunity to work with Bill as his counsel.  That would have been nice.  I expect I would have learned a lot, for Bill, a former Eagle Scout, set a fine example for us all.

I send my earnest sympathies to Bill’s wife, Susan, his family, partners at Hausfield and many friends. Though I know he will be remembered in many lasting ways, like a scholarship or other commemoration, Bill’s legacy is the balance he brought to the last decade of e-discovery standard setting and rule making efforts.  At a time when we really needed someone like Bill Butterfield to step in front of the tanks, we were fortunate indeed that Bill stepped in and stepped up.

Tech Tip: Get your iPhone Back

lock-screen“Will the person who left their cell phone at the security checkpoint please retrieve it?”  People constantly leave their phones behind at security checkpoints, washrooms, checkout counters and charge stations.  Too, the little buggers slip out of pockets and purses.  More than three million phones are lost in the U.S. every year, and less than one-in-ten lost phones finds its way home.  Saturday night, I found an iPhone on the floor at a big party in the Faubourg Marigny in New Orleans.  I located the owner by asking everyone in sight if they’d lost a phone, and when I found her, the owner didn’t know she’d dropped it.

There are high tech tools to find lost phones like the Find My iPhone app or Tile locators; but, these only work for owners and require a second connected device.  What do the persons who find your phone or the Lost & Found staff do to quickly locate you, often before you realize your phone’s gone?  You don’t have an ID tag with contact data on your phone, right?

I do something that’s so darn simple, it’s a wonder it’s not already an option on every iPhone: I embed my name and email address in the lock screen photo (i.e., the wallpaper image that appears when you press the sleep/wake button, even when the phone is locked).  Now, any announcement over the P.A. includes my name, and I’ve furnished a secure way for good samaritans to contact me to arrange return.  It’s also an easy means to supply emergency contact information, should the good samaritan find you dropped alongside your phone.

There are plenty of ways to add text to your lock screen image–I’ve used the drawing tools in PowerPoint–but the simplest is to use the image editing tools right on your iPhone.  Here’s how (in iOS 10.1.1):

  1. Select an image to serve as your lockscreen wallpaper.  Use one with not-too-busy space for text (like the clouds in mine).  The text location shouldn’t conflict with the date and time text.  You may prefer to use a picture of yourself to make it easier to find you and prove it’s your phone.
  2. Duplicate the image so as not to alter your original.  Do this by selecting Share (box with the up arrow) and Duplicate.
  3. Working with the duplicate image, choose Edit from the toolbar (abacus-like slider), then choose More (circle with three dots).  Select Markup (toolbox icon) and finally choose the Text option (uppercase “T” in a box).
  4. A text box will appear in the center of your image.  You can resize it by dragging the blue dots or reposition it by dragging the box.  You can change the font face, font size, text color and alignment from the menu bar.
  5. Type your information.  Be sensible, e.g., don’t include your home address, and don’t use your mobile number (duh). Click Done (upper right corner).
  6. To make the edited image your lockscreen wallpaper, go to Settings>Wallpaper>Choose a New Wallpaper.  In All Photos, navigate to the annotated image you just created and select it (tap). Move and scale the image as suits you, then select Set from the menu and choose Set Lock Screen.  You’re done!

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