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

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


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