EDna: Still Cheap and Challenged

EDna2016

About seven years ago, I e-mailed a hypothetical to colleagues seeking their advice about how to process and review an unprepossessing volume of ESI for production in e-discovery.  The intelligence they shared became fodder for The EDna Challenge and, I like to think, helped promote lower cost e-discovery options in the marketplace.

Since then, three of the contributors (Browning Marean, Ross Kodner and Dave Kleiman) have passed on and nearly all have moved on.  But, the challenge remains challenging.  The good news is that Edna now has five times more money to spend.

Next week’s ACEDS Conference seeks a re-examination of EDna options circa 2016 on a bigger budget; so, may I please impose on you, Dear Reader, to share your suggestions drawing on the much broader array of options available today?  Please add your suggestions as comments, and it’s fine to toot your own horn so long as you don’t exceed the budget, all in, and meet all the requirements of the challenge.

Here’s the updated challenge:

Your old friend, Edna, called with a question.  She has a small law firm.  A client is about to send her a Zip file on a thumb drive containing collected ESI in a construction dispute.  It will be PSTs for six people, another four MBOX takeouts from Gmail and a mixed bag of word processed documents, spreadsheets, PowerPoint documents, PDFs and “not a lot” of scanned paper documents (sans OCR or load files) for all ten custodians.  There may also be some video, photographs and web content.  “Nothing too hinky,” she promises.  She thinks it will comprise less than 50,000 documents in all, but it could grow to 100,000 items or more.  The contents will unzip to about 10-12 GB in all.

She’s determined to conduct a paperless privilege and responsiveness review of the material in-house, sharing the task with an associate and legal assistant.  Everyone has a high-end, big screen desktop PC running Windows 8.1 with MS Office 2016 and Adobe Acrobat 11 Pro installed.  The office’s network file server has loads of available storage space.  She doesn’t own a review tool.  She’s willing to spend up to $5,000.00 ALL IN, for software, vendor services, SaaS, whatever, exclusive of the cost of her time and staff time), but she won’t spend a penny more.  You can’t loan her your systems or software.  You can’t talk her out of it.  Pricing must mirror real-world availability, not a special deal.

Edna’s solution must support:

  • Efficient workflow
  • Robust search
  • Ability to process relevant metadata
  • Simple document tagging and production identification
  • Effective tracked deduplication
  • Review may take up to 90 days, and the case may not conclude for up to two years.  All review,  hosting and production costs must be borne by the budget.

How should Edna spend that $5,000.00?

Luddite Lawyer’s Guide to Computer Backup Systems

It will come as no surprise to readers that I cleave to simple credos when it comes to litigation and e-discovery, viz.

  • Most evidence today is digital.  It’s powerful, persuasive and pervasive.
  • Being a lawyer is a privilege; our competence is the least clients deserve.
  • Trial lawyers should be competent in matters of evidence and discovery.
  • Competence in evidence entails competence in e-evidence.
  • Competence in discovery entails competence in e-discovery.
  • You’re not competent in e-evidence or e-discovery if you ignore the “e.”
  • Knowing the law is one thing. Attorneys are smart and can learn a second thing.
  • Attorneys trade in information;  that “second thing” should be information technology.

These are inarguable assertions in my mind; but, somehow, they remain controversial in practice.  The controversy endures because of the equally inarguable fact that those who set the standards for lawyer competence will never draw the circle of competence in such a way that they are left standing outside of the circle.  If it were important to know, they reason, they would already know it.  Discouraging.

But things will change, and when they do–when lawyers wake to the power of ESI–they will want materials that teach the “e,” not just the discovery.  They will want materials written by lawyers, for lawyers.

I’ve been laboring to contribute some of those materials for many years;  so long, in fact, that I’m chagrinned by how dated some of my early writings feel.  Back in 2009, I wrote a long essay–a primer really– for the Georgetown E-Discovery Institute, back when there was still a plenary technical topic covered during that storied event.  It was a primer on backup systems, which were still pretty central to high-profile e-discovery disputes back then.  Over the years, I’ve written lawyer-friendly technical primers on computer forensics, e-mail systems and databases to accompany other Tech Focus sessions at Georgetown, before the heresy of teaching information technology to lawyers at the Institute was recognized as being less promising than, say, teaching a pig to mambo. These primers, too, were getting long in the tooth and just felt, well, tired.

So, today, I spent the whole day extensively rewriting and updating the primer on backups. It’s now called the Luddite Lawyer’s Guide to Backup Systems, and I’m happy to put it back out there, fresh for 2016.  In addition to updating it to reflect the state-of-art in backup techniques and media, I added some nifty new stuff and graphics, like this colorful illustration to accompany my explanation of the difference between differential and incremental backups:

backup-differential vs incremental

I also came up with a formula to calculate the real world transfer time for backup tapes and compiled and included a list of the values needed to plug into the formula for just about every format of backup tape used for the last thirty years:

real world tape times

I wrapped up the rewrite by adding ten practice tips for dealing with backups in civil discovery.

If you’re interested in digging into what makes backups go, and how to address them in civil discovery, I hope you give the latest Luddite Lawyer’s Guide a peek.  You don’t have to be a Luddite; but if you are and read the primer, there’s good chance you won’t be able to call yourself a Luddite anymore.  Feedback welcome.  Criticism encouraged.  Thanks.

Introduction to Discovery in U.S. Civil Litigation

tools of discoveryI am fortunate to teach electronic discovery and digital evidence in many venues. There’s the semester-long, 3 credit course at the University of Texas School of Law each Fall, the weeklong Training Academy offered to all comers each June at Georgetown Law School (as part of a splendid faculty) and the 50-70 speeches a year that keep me idling at airports. Next month, I’m adding a sixteen week, eight-session online evening program through the District of  Columbia Bar, immodestly titled “Prime Time with Craig Ball.”

All of these entail accompanying written material, so there is a lot of research and writing for the various courses and presentations.  Some of my students aren’t lawyers or are law students with the barest theoretical understanding of discovery.  I’ve found it’s never safe to assume that students know the mechanisms of last-century civil discovery, let alone those of modern e-discovery.  Accordingly, I penned the following short introduction to discovery in U.S. civil litigation and offer it here in case you need something like it, especially if you’re also teaching this stuff.  [It’s copyrighted, but feel free to use it with attribution].

Though I have never known a time without discovery, I found it interesting to reflect on the fact that civil discovery is only about 20 years older than I am; Discovery is nearly a Baby Boomer!  On a scale of jurisprudential evolution, we’re both young punks.  Need some perspective?  The FRCP are exactly the same age as U.S. Supreme Court Justice Stephen Breyer, former Attorney General Janet Reno and Prof. Alan Dershowitz.  Continue reading

“Alexa. Preserve ESI.”

alexa-bunny slippersIt’s said that the difference between men and boys is the price of their toys.  True enough. A benefit of adulthood is that, if you’re lucky, you can splurge on stuff you dreamed of as a child.  For me, a boyish passion was remote sensing and control.  When you’re small and powerless, you feel bigger and empowered to monitor and control things from afar, even if “afar” is just a few feet away. So, before I began fooling with phones and multi frequency switching systems as an adolescent, I was a grade schooler stringing, first real string, then wires and finally transmitters and receivers to turn things on and off and monitor my little world.

Most of these I built, some I bought (or, more accurately, I received as gifts from my indulgent parents).  I vividly remember the Sonuswitch from the venerable  Hammacher Schlemmer‎ store on East 57th Street in Manhattan, a boxy black and gold brick that turned on lights with two hand claps or by jingling keys.

The ’60s were a Golden Age for the electronics tinkerer.  Radio Shack then sold aisle-after-aisle of bright red Science Fair electronics kits and thousands of discrete components (what transistors, resistors, and capacitors are called to distinguish them from integrated circuits or “chips”).  In 1967, I’d venture down to Canal Street and cruise blocks of surplus electronic outlets selling “space age” government surplus componentry or drool over the wares at the long gone Lafayette Radio Electronics and Heathkit stores on West 45th Street.  Lafayette is where I got an FM transmitter that allowed me to broadcast to a vacant corner of the FM dial and the Big Ear, a giant orange parabolic microphone that promised the ability to listen to distant whispered conversations.

I’ve tread memory lane with a purpose: to talk about the latest manifestation of my childhood longings for remote monitoring and control and what they signal with respect to e-discovery.  Today, we are entering a Golden Age of remote sensing and control for the masses.  Internet-enabled cameras monitor my home, and lights and door locks answer to apps on my iPhone.  My lightbulbs talk to the network and adjust brightness and hue on command.  My thermostat let’s me tweak energy usage from aloft when I’ve forgotten to do it before heading to the airport.

And the most exciting development in my nerd’s paradise is the ability to control much of it by speaking to the new woman in my life, Alexa, the e-persona of my Amazon Echo and Dot devices.

I have my buddy Ernie the Attorney Svenson to thank for introducing me to Alexa.  In Ernie’s lovely Uptown New Orleans home, Alexa’s sleek, black cylinder holds a prominent place in the living room.  From the first moment Alexa and I spoke, I  knew I had to have her. And have her, I did.  I’ve had her in my bedroom, my bathroom, kitchen and living room, in my places in Austin and New Orleans.  Oh, Alexa, is there anything you won’t do for me? Continue reading

“EDD Competency” Rhymes with “EDD Utterly Free”

gainesvilleI haven’t posted in ages per the Mr. Ed Rule.  For those too young to remember the talking horse of early-60s TV, the theme song says, “Mr. Ed will never speak unless he’s got something to say.”  Sorry, Wilbur.  I just didn’t have anything to say, and didn’t wish to waste your time.  But, now I’ve got something worth writing about, and a gift to share.

Last year at this time, I wrote about Bill Hamilton and the excellent, intimate e-discovery conferences he convenes in central Florida at the University of Florida, Levin College of Law.  The UF campus is in Gainesville, and to be honest, it’s not an easy place to reach unless you’re an alligator or live in Charlotte, Atlanta or Miami.  I fly to Orlando and drive two hours.  So, you’ve really got to want to go to Gainesville.  And, thanks to Bill and his distinguished UF Law E-Discovery Project, I often do want to go there.  So should you. Here’s why:

Bill has generously allowed me to make you, dear reader, my guest at the fourth annual EDRM E-Discovery Conference on March 30.  Free, on campus or via the webcast, from anywhere.  Free is my favorite price.  How about you?

Free wouldn’t mean much if what you got wasn’t valuable.  This conference is always a good one.  Check out the agenda.  Bill has countless friends in the e-discovery space and when he calls, many make the trek to Gainesville to support this fine event.  It’s going to be good.

Now, let me sweeten the pot.  There’s an included breakfast, lunch and reception.  Need more?  This morning, it costs $97.00 to fly to Gainesville from LGA or JFK (via Miami) on American Airlines.  From Washington, D.C., how about 83 bucks nonstop on United?   It’s balmy in Gainesville, folks, mid-80s!  To get there from the forty degrees colder Boston, a flight is just $97.00.  At those prices, the free admission pays the airfare, and you get to hang with and learn from a great bunch of people.  Did someone say, ROAD TRIP!?!?!

To get free admission, go to the Conference registration page and locate the link for “Enter promotional code,” in the lower right.  Enter the code CBall16 and marvel as all the registration options change to “Free.”  Don’t hesitate.  Use it now.  Hope to see you there.  We can thank Bill together as we enjoy our free lunches.

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.

Continue reading

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

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