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.

Data Recovery: Lessons from Katrina, Revisited

wet HDDThis is the twelfth 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.

Data Recovery: Lessons from Katrina

[Originally published in Law Technology News, April 2006]

When the sea reclaimed New Orleans and much of the Gulf Coast, hundreds of lawyers saw their computers and networks submerged.  Rebuilding law practices entailed Herculean efforts to resurrect critical data stored on the hard drives in sodden machines.

Hard drives operate within such close tolerances that a drop of water or particle of silt that works its way inside can cripple them; yet, drives aren’t sealed mechanisms.  Because we use them from the beach to the mountains, drives must equalize air pressure through filtered vents called “breather holes.”  Under water, these breather holes are like screen doors on a submarine.  When Hurricane Katrina savaged thousand of systems, those with the means and motivation turned to data recovery services for a second chance. Continue reading

A Golden Rule for E-Discovery, Revisited

This is the eleventh 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.

A Golden Rule for E-Discovery

[Originally published in Law Technology News, March 2006]

Albert Einstein said, “In the middle of every difficulty lies opportunity.”  Electronic data discovery is certainly one of the greatest difficulties facing litigants today.  So wouldn’t you know some genius would seize upon it as an opportunity for abuse?  Perhaps Einstein meant to say, “In the middle of every difficulty is an opportunity for lies.”

I’m not talking about the pyrotechnic failures to produce email or account for back up tapes that brought low the mighty in such cases as Zubulake v. UBS Warburg and Coleman (Parent) Holdings v. Morgan Stanley.  Stonewalling in discovery predated electronic discovery and will likely plague our progeny’s progeny when they grapple with photonic or neuronal discovery.  But while an opponent’s “No, we won’t give it to you,” may be frustrating, it’s at least sufficiently straightforward to join the issue and promote resolution.  The abuses lately seen make stonewalling seem like fair play. Continue reading

Locard’s Principle, Revisited

ShellbagsThis is the tenth 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.

Locard’s Principle

[Originally published in Law Technology News, February 2006]

Devoted viewers of the TV show “CSI” know about Locard’s Exchange Principle: the theory that anyone entering a crime scene leaves something behind or takes something away.  It’s called cross-transference, and though it brings to mind fingerprints, fibers and DNA, it applies to electronic evidence, too.  The personal computer is Grand Central Station for smart phones, thumb drives, MP3 players, CDs, floppies, printers, scanners and a bevy of other gadgets.  Few systems exist in isolation from networks and the Internet.  When these connections are used for monkey business like stealing proprietary data, the electronic evidence left behind or carried away can tell a compelling story. Continue reading

The Path to E-Mail Production IV, Revisited

path of email-4This is the ninth 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.

The Path to Production: Are We There Yet?

(Part IV of IV)

[Originally published in Law Technology News, January 2006]

The e-mail’s assembled and accessible.  You could begin review immediately, but unless your client has money to burn, there’s more to do before diving in: de-duplication. When Marge e-mails Homer, Bart and Lisa, Homer’s “Reply to All” goes in both Homer’s Sent Items and Inbox folders, and in Marge’s, Bart’s and Lisa’s Inboxes.  Reviewing Homer’s response five times is wasteful and sets the stage for conflicting relevance and privilege decisions.

Duplication problems compound when e-mail is restored from backup tape.  Each tape is a snapshot of e-mail at a moment in time.  Because few users purge mailboxes month-to-month, one month’s snapshot holds nearly the same e-mail as the next.  Restore a year of e-mail from monthly backups, and identical messages multiply like rabbits. Continue reading

The Path to E-Mail Production III, Revisited

path of email-3This is the eighth 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.

The Path to Production: Harvest and Population

(Part III of IV)

[Originally published in Law Technology News, December 2005]

On the path to production, we’ve explored e-mail’s back alleys and trod the mean streets of the data preservation warehouse district.  Now, let’s head to the heartland for harvest time.  It’s data harvest time.

After attorney review, data harvest is byte-for-byte the costliest phase of electronic data discovery.  Scouring servers, local hard drives and portable media to gather files and metadata is an undertaking no company wants to repeat because of poor planning.

The Harvest
Harvesting data demands a threshold decision: Do you collect all potentially relevant files, then sift for responsive material, or do you separate the wheat from the chaff in the field, collecting only what reviewers deem responsive?  When a corporate defendant asks employees to segregate responsive e-mail, (or a paralegal goes from machine-to-machine or account-to-account selecting messages), the results are “field filtered.” Today, we’d call this “targeted collection.”

Field filtering holds down cost by reducing the volume for attorney review, but it increases the risk of repeating the collection effort, loss or corruption of evidence and inconsistent selections.  If keyword or concept searches alone are used to field filter data, the risk of under-inclusive production skyrockets.

Initially more expensive, comprehensive harvesting (unfiltered but defined by business unit, locale, custodian, system or medium), saves money when new requests and issues arise.  A comprehensive collection can be searched repeatedly at little incremental expense, and broad preservation serves as a hedge against spoliation sanctions.  Companies embroiled in serial litigation or compliance production benefit most from comprehensive collection strategies.

A trained reviewer “picks up the lingo” as review proceeds, but a requesting party can’t frame effective keyword searches without knowing the argot of the opposition.  Strategically, a producing party requires an opponent to furnish a list of search terms for field filtering and seeks to impose a “one list, one search” restriction.  The party seeking discovery must either accept inadequate production or force the producing party back to the well, possibly at the requesting party’s cost. Continue reading

The Path to E-Mail Production II, Revisited

path of email-2This is the seventh 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.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail.  Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides.  Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data.  Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users.  They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner.  In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it.  Don’t leave the fox guarding the henhouse.

Consider the following as parts of an effective e-mail preservation effort:

  • Litigation hold notices to custodians, including clear, practical and specific retention directives. Notices should remind custodians of relevant places where e-mail resides, but not serve as a blueprint for destruction. Be sure to provide for notification to new hires and collection from departing employees.
  • Suspension of retention policies that call for purging e-mail.
  • Suspension of re-use (rotation) of back up media containing e-mail.
  • Suspension of hardware and software changes which make e-mail inaccessible.
  • Replacing backup systems without retaining the means to read older media.
  • Re-tasking or re-imaging systems for new users.
  • Selling, giving away or otherwise disposing of systems and media.
  • Preventing custodians from deleting/ altering/corrupting e-mail.
  • Immediate and periodic “snapshots” of relevant e-mail accounts.
  • Modifying user privileges settings on local systems and networks.
  • Archival by auto-forwarding selected e-mail traffic to protected storage (i.e., journaling).
  • Restricting activity like moving or copying files tending to irreparably alter file metadata.
  • Packet capture of Instant Messaging (traffic or effective enforcement of IM prohibition.
  • Preserve potential for forensic recovery.
  • Imaging of key hard drives or sequestering systems.
  • Suspension of defragmentation.
  • Barring wiping software and encryption, with audit and enforcement.

Continue reading

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