Databases in Discovery

ludditeguidetodatabasesFive years ago, I wrote The Luddite Litigator’s Guide to Databases in E-Discovery to accompany a lecture on the subject at the 2010 Georgetown Advanced E-Discovery Institute.  When I went looking for source material for the article, I was struck by how little there was.  Databases hold most of what we seek in discovery; yet, no one had written anything practical about discovering structured data.  My Luddite Litigator’s Guide was a start, but far from a comprehensive treatment as it lacked the takeaway lawyers crave most: exemplar language and forms.

The curse of legal writing is that we are less prone to create than emulate.  We borrow language from forms as though it were enchanted incantations.  In fact, there are precious few magic words that must appear in pleadings and discovery requests, a point made often and expertly by Bryan Garner, whose thoughtful work I commend to you as a path to better legal writing.

I loathe the practice of law from forms, but I bow to its power.  If we hope to get lawyers to use more efficient and precise prose in their discovery requests, we can’t just harangue them to do it; we’ve “got to put the hay down where the goats can get it.” To that end, here is some language to consider when seeking information about databases and when serving notice of the deposition of  corporate designees (e.g., per Rule 30(b)(6) in Federal civil practice): Continue reading

Is Transformation Possible?

Ernie the AttorneyMost of us want transformation without change.  We want to be healthier, so long as it doesn’t require diet or exercise.  We want more time for family, friends and community, but not if it means passing up new business or earning less. We crave new and better, but feel safer in our comfort zones.

True transformation requires change: change of practice, of pace, of place and of attitude. Change is occasionally exciting, frequently enriching, and change is always easier when we pursue and embrace it than when it’s shoved down our throats.

Change travels fast; transformation creeps.

Except, in the legal technology arena, change takes years, and transformation decades; that is, save for the fortunate few able to reinvent themselves by rejecting the notion that one is ever “too busy to learn to be more efficient.”  One such different drummer and visionary is Ernest Svenson of New Orleans (pictured above).  If that mild-mannered moniker doesn’t ring any bells, perhaps you know him by his superhero name, Ernie the Attorney.

Driven by wind and water (a/k/a Hurricane Katrina), Ernie transformed from bored big firm litigator to energized, automated and in-control solo practitioner.  Ernie invested the time required to figure out how to practice efficiently, tame the paper tiger and exploit the latest techno-apps, -tools and -services.  Ernie thought things over and identified better ways to do what we do every day.  He began blogging about his successes and failures and writing books, always eager to share his wealth of knowledge with any it might help.

But, though Ernie could foster change by blogging and writing books, spawning transformation demanded a more intense and intimate sharing of skills and insights; so, Ernie created the Small Law Firm Bootcamp, a two-day event in New Orleans between Christmas and New Year’s—a time when we take stock of the year gone by and resolve to do better in the next. Continue reading

The Right Not to Know

starwars_hear no evilTexasBarToday_TopTen_Badge_SmallI’m sitting outside a courtroom in Texas where I have left the proceedings rather than risk the assertion that I learned confidential information offered as testimony in open court.  Sounds crazy, I know; but when lawyers agree to protective orders and judges enter them (then order that they apply to anyone sitting in the courtroom, signatory or not), judges and lawyers tend not to consider what impact those orders have on persons not parties to the case.  Just as there must be a right to protect truly privileged information and trade secrets, there must be a corollary right not to take on the burden and risk of protecting such information when you neither seek nor require disclosure of confidential data.  We have a right not to know.

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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.

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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


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