Meet Tom O’Connor

toc_smallAnyone who’s been around electronic discovery for long is sure to know my old friend, Tom O’Connor of New Orleans. Understand, I don’t call Tom “old friend” because we’ve known each other for a long time (though we have).  I do it because Tom’s OLD.  He’s freaking ancient. But, the centuries haven’t been entirely wasted on Tom because in addition to a three-foot ponytail and a beard to rival Santa’s, Tom has acquired a surfeit of wisdom and friends.  Tom has his finger squarely on the pulse of the e-discovery industry and possesses a refined sense of what’s coming and the personalities pulling strings.  People enjoy talking to Tom, and Tom listens.  He’s a guy to have on your team; someone who makes things better just by being part of them.

I mention Tom (and will now quit yanking his chain age-wise) because he often invites me to join him on a YouTube series called The eDiscovery Channel.  I took over co-hosting from the late, great Browning Marean.  Browning’s are big shoes to fill, but the stakes are low: we reach less than 100 viewers.  It’s just for the fun of it, and we have a lot of fun.  We record in offbeat NOLA venues like Tom’s favorite cigar shop or sitting in a park.  Our production values rival the Zapruder film and, despite a topic in mind when we start recording, we inevitably stray with antic results.  At least we’re laughing.

In our latest one-hour episode on drafting forensic examination protocols, we digressed to a discussion of innovation in litigation, touching the obligatory stations of the cross, predictive coding, artificial intelligence and blockchain.  I’m deeply concerned by diminished resources for lawyers to gain basic technical competency.  Buzzword technologies have sucked the air from the room when it comes to e-discovery education.  Lawyers have abdicated responsibility for the left side of the EDRM.

The problem I see is this:

Advanced review technologies like predictive coding and AI are routinely deployed against data lousy with errors in collection, culling and processing—errors born of poor e-discovery skills and fostered by a rush to apply fancy joinery to rotten wood.  As a requesting party, do you think that your interests are best served by a contentious push for predictive coding when you haven’t scrutinized the effectiveness of collection and exclusion?  E-discovery needn’t be a choice between bad collections and good tools or good collections and bad tools.

Lawyers must fight for quality before review.  Sure, review is the part of e-discovery most lawyers see and understand, so the part many fixate on.  As well, review is the costliest component of e-discovery and the one with shiny new tools. But here’s the bottom line: The most sophisticated MRI scanner won’t save those who don’t survive the trip to the hospital.  It’s more important to have triage that gets people to the hospital alive than the best-equipped emergency room. Collection, culling and processing are the EMTs of e-discovery.  If we don’t pay close attention to quality, completeness and process before review, review won’t save us.

We need balance and a focus on fundamentals.  We’ve lost the first; we never had enough of the second.  And if you need more e-discovery mirth and merriment, stop by the E-Discovery Channel and meet Tom O’Connor, REALLY FAMOUS consultant,  speaker,  writer.

P.S. I think I owe an explanation of the photo of Tom that begins this post.  Tom told a story about an author who always came to the ABA Techshow carrying a banner inviting attendees to meet him in person.  As a prank, I had a tongue-in-cheek banner made for Tom and was surreptitiously hanging it off his porch in New Orleans when he caught me red-handed,  Tom would never toot his own horn that way; but, he was a great sport about it .  And as for Tom being old, I have to concede that he’s not that far ahead of me.  I’m 20 in my mind’s eye, so that makes Tom around 25.

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Easing the Pain of Protective Orders

protective_orderDoes anyone read what they sign anymore?  We all click through EULA’s; but shouldn’t lawyers and experts pay close attention to the terms of protective orders?

Here’s a familiar scenario:

Client says, “we have discovery responses you need to review, sign this acknowledgement to be bound by a protective order.”  I read the order and respond, “I can’t,” adding, “Like you, I have work product to protect, and like you, I back up my data.  I can’t ‘return’ data residing on backups.  I’ll carefully protect the data, but I can’t commit to destroy or return it when the case concludes.”

I’m the bad guy because everyone else signs.

First, let me further explain the conundrum.  Continue reading

Drafting Digital Forensic Examination Protocols

A computer or smart phone under forensic examination is like a sprawling metropolis of neighborhoods, streets, buildings, furnishings and stuff–loads of stuff.  It’s routine for a single machine to yield over a million discrete information items, some items holding thousands of data points.  Searching so vast a virtual metropolis requires a clear description of what’s sought and a sound plan to find it.

In the context of electronic discovery and digital forensics, an examination protocol is an order of a court or an agreement between parties that governs the scope and procedures attendant to testing and inspection of a source of electronic evidence.  Parties and courts use examination protocols to guard against compromise of sensitive or privileged data and insure that specified procedures are employed in the acquisition, analysis, and reporting of electronically-stored information (ESI).

A well-conceived examination protocol serves to protect the legitimate interests of all parties, curtail needless delay and expense and forestall fishing expeditions.  Protocols may afford a forensic examiner broad leeway to adapt procedures and follow the evidence, or protocols may tightly constrain an examiner’s discretion, to prevent waiver of privilege or disclosure of irrelevant, prejudicial material.  A good protocol helps an examiner know where to start his or her analysis, how to proceed and, crucially, when the job is done.

As a litigator for over 35 years and a computer forensic examiner for more than 25 years, I’ve examined countless devices and sources for courts and litigants.  In that time, I’ve never encountered a forensic examination protocol of universal application.  “Standard” procedures change over time, adapted to new forms of digital evidence and new hurdles–like full-disk encryption, solid-state storage and explosive growth in storage capacities and data richness.  Without a protocol, a forensics examiner could spend months seeking to meet an equivocal examination mandate.  The flip side is that poor protocols damn examiners to undertake pointless tasks and overlook key evidence.

Drafting a sensible forensic examination protocol demands a working knowledge of the tools and techniques of forensic analysis so counsel doesn’t try to misapply e-discovery methodologies to forensic tasks.  Forensic examiners deal in artifacts, patterns and configurations.  The data we see is structured and encoded much differently than what a computer user sees.  The significance and reliability of an artifact depends on its context.  Dates and times must be validated against machine settings, operating system functions, time zones and corroborating events.

Much in digital forensics entails more than meets the eye; consequently, simply running searches for words and phrases “e-discovery-style” is far less availing than it might be in a collection of documents.

If you can conceive of taking the deposition of a computer or smart phone, crafting a forensic examination protocol is like writing out the questions in advance.  Like a deposition, there are basic inquiries that can be scripted but no definitive template for follow-up questions.  A good examiner–of people or computers–follows the evidence yet hews to relevant lines of inquiry and respects boundaries.  A key difference is, good advocates fit the evidence to their clients’ narrative where good forensic examiners let the evidence tell its own story.

If you’ve come here for a form examination protocol, you’ll find it; but the “price” is learning a little about why forensic examination protocols require certain language and above all, why you must carefully adapt any protocol to the needs of your case. Continue reading

Preserving MAC Times Collecting Files in E-Discovery

MAC timesChecking the mailbag, I received a great question from a recent Georgetown E-Discovery Training Academy attendee.  I’m posting it here in hopes my response may be useful to you.

My student wrote: I have a question in regard to zipping eDiscovery data. We’ve always used 7zip to zip our collections. The filenames are too long for Microsoft to be happy with them in their original state. One of our consultants is now telling me that I’m changing metadata. Can you clear this up for me? Am I changing metadata just by zipping a file? If I am, are there other simple tools that I can use? 

Metadata is always changed in the copying of files within a Windows environment.  Anytime you copy data to new media, Windows changes some of its metadata.  Some e-discovery collection tools change the values back to the originating values as part of the collection process.  Thus, the metadata changes, then changes back to undo the change.  If you want to use such tools, they are out there.

I think the more important concern is whether the tools and methods you employ reconstruct the metadata that matters and preserve the integrity of the evidence files.  There is a simple way for you to assess that: check the MAC (modified/accessed/created) dates and hash the files in and out!  You did some exercises of this nature in my Georgetown Academy workbook. Continue reading

Handy Chart on E-Admissibility

admissibilityI received a fine gift this morning from U.S. District Judge Paul Grimm, and with the authors’ permission, I’m sharing it with you.  It’s a splendid chart on admissibility of electronic evidence that any trial lawyer will want when going to Court.  For younger readers, I will explain what “going to Court” means in a future post. 😉

The chart is the latest iteration of work by Paul Grimm and Kevin Brady, two I admire as much for their sterling characters and kindnesses as for their stunning lawyer intellects.  Judge Grimm needs no introduction here.  He’s the judge behind decisions like Victor Stanley v. Creative Pipe, Mancia v. Mayflower and Lorraine v. Markel, the last a virtual hornbook on admissibility of electronic evidence.  He’s also masterfully guided the evolution of the federal rules of evidence and procedure, notably FRE 502 and FRCP 37(e).  Paul Grimm is simply the finest judge–and gentleman–I know.

Kevin Brady is Of Counsel to Redgrave LLP.  I’ve been privileged to work with Kevin over many years in support of the Georgetown E-Discovery Institute and E-Discovery Training Academy.  Everyone who knows him likes and admires Keven Brady, and Kevin has quietly made countless contributions to e-discovery education.  This chart is just one more instance of Kevin’s largesse.

The chart is handsome to look at and easy-to-use. It covers authentication, relevance, hearsay exceptions and the Original Writing rule (which some like to call the Best Evidence rule).  Click HERE to get your free copy.  Thank you Paul and Kevin!

Preserving Alexa History: Ugly-but-Easy

amazon-alexa-history-angleTwo years ago, I blogged about the challenge of seeking to preserve records of interactions with the Amazon Echo/Alexa family of devices and applications.  I concluded:

“Listen, Amazon, Apple, Microsoft and all the other companies collecting vast volumes of our data through intelligent agents, apps and social networking sites, you must afford us a ready means to see and repatriate our data.  It’s not enough to let us grab snatches via an unwieldy item-by-item interface.  We have legal duties to meet, and if you wish to be partners in our digital lives, you must afford us reasonable means by which we can comply with the law when we anticipate litigation or respond to discovery. “

In a testament to my thought leadership, nothing whatsoever has happened since my call-to-arms in terms of the ability to preserve Alexa app history data.  It’s as bad as it was two years ago and arguably worse because Echo products have grown so popular and the Alexa interface has been integrated into so many devices that the problem is bigger now by leaps and bounds.

Don’t get me wrong, I am Alexa’s biggest fan (and adore her sisters, “Amazon” and “Computer,” so-called for the alternate “wake words” I use to trigger voice communication to Amazon’s servers from other Echo devices).  If anything, Craig the Consumer is happier now with the Echo ecosystem than two years ago.  Wearing my user hat, Alexa’s a peach (and, yes, I am perfectly comfortable with her from a privacy point of view).  Wearing my e-discovery propeller beanie, Alexa is a pain in the butt.  She’s a data gold digger who cooks the books to make it supremely difficult to account for what she’s taken. Continue reading

Docendo Discimus: Q & A

teach-learn

The Latin maxim Docendo Discimus means “by teaching, we learn.”  So true, because absent my need to stay up-to-date to teach, it’s easy to fall behind.  I teach various places, but of longest standing at the University of Texas School of Law, my alma mater.  My subject is E-Discovery and Digital Evidence, a three-credit, 14-week course.  In my course, information technology enjoys equal status with case law and procedure.  Half the semester is dedicated to mastering the “e” in e-discovery: the foundations of modern information storage and retrieval.  That balance is unique among law school courses.  I don’t elevate information technology because I happen to know how to teach it; I do it because I think it’s what the students need most and don’t get.  It’s certainly what lawyers need most and don’t get.

Why?

Surprisingly, that’s a contentious question.  The arguments against teaching the technology side of e-discovery and digital evidence range from “it’s not law” to “lawyers hire people for the tech stuff, so why bother?”

I think the explanation for the marginalization of information technology in e-discovery classes is simpler: lawyers teaching law school classes have a limited ability to teach technology.  My guess is that if the teachers knew the technology as well as they know the law, there would be more balance in the curriculum.

The limits of instructors hobbles the curriculum of e-discovery, which should spring from the needs of the students.  We should gear our syllabi to what must be learned rather than what can be taught.  First, let’s teach the teachers.

That won’t be easy.  The level of interest is low, and who wants to draw the circle of competence to leave themselves outside the circle?  Too, there are virtually no instructional channels or materials.  No formal incentives.  No funding.  Many invested in the status quo ante.  And all that aside, there’s a dearth of experienced instructors.  We are fuc… challenged.

Continue reading

My Dinner with Doris

dkg2018-2I have been lucky all my life, a fact taken for granted until standout strokes of good fortune prompt grateful reflection.  Today, it’s how blessed I have been, personally and professionally, by association with gifted and indomitable women.  In the last sixteen months, I’ve presented with Supreme Court Justice Sonia Sotomayor, NPR legal Correspondent Nina Totenberg and last Monday night, most fun of all, Presidential biographer and pop-culture icon, Doris Kearns Goodwin.  How’s that for luck!

I’d resolved to forego the annual New York LegalTech/LegalWeek show this year until my friends at Zapproved made me an offer I couldn’t refuse: interview Doris Kearns Goodwin at Tavern on the Green to anchor their annual e-Discovery Heroes awards ceremony.  They sweetened the pot by noting that they would also honor the lifetime achievements of Judge Craig Shaffer and recognize the e-discovery leadership of three dear friends, Judges Jay Francis, Frank Maas and Andy Peck, all of whom have left or are soon leaving the Federal bench.

Would I do it?  Are you kidding?  They had me at “hello.” Continue reading

The Sincerest Form of Flattery

51AEI3isFiL._SX327_BO1,204,203,200_You’d have to have been in a coma (lucky you) to have missed the presidential ire and fury roused by the book, Fire and Fury: Inside the Trump White House by Michael Wolff and its excerpts in New York magazine.  In them, we learn the President is an insecure, incurious buffoon and his posse of dim opportunists are a bunch of toadies and backstabbers (including many doing double-duty as backstabbing toadies).  Who knew?

Until Trump tried to restrain publication of the book and demanded retraction of the article, I didn’t think this latest dust up had anything to do with e-discovery or with me.

Boy, was I wrong. Continue reading

Houston: We’ve Got a Problem

19-hurricane-harveyHouston is my hometown.  I wasn’t born there (though both my children were); but, I got there as quickly as I could, at age 17 to study at Rice University.  I practiced law in Houston and kept a home in the Houston area for 38 years, longer by far than anywhere else.  I have deep Texas roots, proud Houston roots.  So, it pains me to see what’s happening in Harris County, and as a past President of the Houston Trial Lawyers Asociation, I’m thinking of all my colleagues whose offices are submerged or inaccessible and whose practices will be devastated and disrupted by Hurricane Harvey.

Right now, the needs are basic: shelter, food, clothing, medical care and such.  Soon, however, we must restore the legal and business infrastructure.  Though Houston is home to several megafirms, the majority of Houston lawyers–the best lawyers in the world–are small firm- and solo practitioners.  It’s these lawyers who will help people pick up the pieces of their lives by prosecuting claims for storm damage when insurers decline to pay what’s owed.  In Texas, the need is dire as the toadying Texas Legislature serves at the pleasure of big national insurance carriers, a fact borne out by legislation that, even before Harvey’s waters recede, will operate to deprive Texas insureds of substantial rights to recover for storm losses, effective September 1.  Ironic.  Tragic. Despicable.

So, we must pull together to help Gulf Coast lawyers recover from the storm. My friend, Tom O’Connor, unselfishly organized a relief effort for Louisiana lawyers when Katrina crippled New Orleans and environs.  I’m proud to have contributed in a small way to that effort, financially and by speaking in New Orleans about tech tools to help lawyers cope. I look forward to the chance to work with Tom and with The Computer and Technology Section of the State Bar of Texas to do the same for Gulf Coast lawyers.

There is so much to do, and we must each do what we can according to our particular ways and means. Helping Texas lawyers harness technology to weather the storm is something I can do, and I know it’s within the capability of many of my readers. Houston needs help, and Houston deserves it.  After Hurricane Katrina, Houston took in a quarter of a million evacuees, some forty thousand of them stayed.  When I was at Rice, Houston welcomed 200,000 Vietnamese refugees.  No city is more diverse.  None more self-reliant and can-do.  No city has a bigger heart.

There are a lot of sodden computers and hard drives in Houston and all along the Gulf Coast.  Where once we grabbed the family photo album in an evacuation, today, cherished photos (and crucial client data) is all digital.  To that end, I offer this link to a post I wrote after Katrina addressing data recovery.  We have come a long way since since August 2005.  The Cloud and mobile devices play a big role in data storage, and many hard drives are now solid state; still, the majority of computers rely on mechanical hard drives for long term storage, and water plays havoc with mechanical hard drives. What you do with a damaged device in the aftermath makes a huge difference in whether the data they contain can be resurrected.

Please help Houston, and Houston lawyers, get back on their feet.  Believe me, Houstonians would be there for you.  They’ve proved it many times before.