Proportionality and Emerging Technologies

angela-buntingIn the wee hours last evening, I received a question posed by Angela Bunting with Nuix down in Sydney, Australia.  Angela has such deep knowledge of e-discovery above and below the Equator that I was flattered to be queried by someone I’d go to for guidance.  It was a magnificent hypothetical question.

Angela posited a scenario where a producing party used emerging technolgies to either mechanically translate foreign language text to English or voice recordings to text.   In each instance, the quality of the resultant searchable text was poor, akin to bad OCR, and characterized by poor searchability due to malformed and missing words, misleading substitutions, etc.  As a  consequence of  this poor searchability, some documents that should have been produced were not and, to make matters worse, the requesting party had some of the omitted documents, so could readily demonstrate serious flaws in production.

Challenged by the requesting party, the producing party defends the use of the automated transcription or translation based on proportionality.  To do the same work any other way would have required use of costly and time-consuming manual labor.

So, there you have it: the automated approach was faster and cheaper, but also much less accurate and complete, resulting in a failure to produce non-privileged responsive material.

Angela asked what I believed the view of the courts might be in such a situation?  Would the Court require the work be done again using a more accurate, more expensive method? Might sanctions issue?  Would the Court excuse the failure based on proportionality?

Predicting what courts will do based on skeletal hypotheticals is a crap shoot.  Outcomes turn on the peculiar facts of each case and, when the issue is e-discovery, on counsels’ skill in acquainting the judge with the technical underpinnings.

But, I gave it a shot, and here’s my reply:

Continue reading

The Upside of Error in E-Discovery

i-want-honestThis is a peculiar post in that it’s not an essay with a takeaway so much as a cerebral beach ball tossed to the crowd in hope that readers might enjoy batting it around (in comments below or over cocktails at the next e-discovery confab).  My proposition is that error, particularly inadvertent production occurring as a consequence of human carelessness, is a useful hedge against obstruction. Put another way, producing parties have become so adept at or inured to confounding e-discovery that a producing party’s mistakes are now our main–and perhaps only–means to uncover abuse.  I further posit that, although the shift to technology-assisted review is driven principally by cost savings, its incidental “benefit” to producing parties lies in its ability to stem inadvertent productions serving to reveal discovery abuse.

I concede that’s a cynical proposition, and I dearly wish it weren’t so dour; but, I’ve been litigating for 35 years, a third of that time dedicated to unspooling failed and abusive e-discovery efforts as Special Master.  Judges don’t ask me around to admire discovery efforts done right; I’m invited to disaster areas.  When I was counsel for injured parties in products liability and negligence matters, I lived the grind of forcing opponents to surrender information that helped my clients.  It was never easy; it can shake your faith.

Then and now, opponents fancifully characterized damaging information as privileged or decided that the author of the inculpatory e-mail or memo didn’t really mean what he or she plainly said.  Lawyers and clients will withhold damaging responsive data based on a tortured interpretation of a request or by the slender reed of a boilerplate objections: “Vague!” “Overbroad!” “Unduly burdensome!”  Lawyers have a remarkable capacity to rationalize failures to produce responsive material in discovery.  Continue reading

Crafting the “Perfect” Legal Hold Notice

perfect-preservation-noticeEach September for the last four years, I’ve had the pleasure to participate in a splendid e-discovery conference in Portland, Oregon called PREX, so-called because the whole event is devoted to PReservation EXcellence.  It’s sponsored by Zapproved, but unlike other developer events, it’s less a celebration of self than a product-neutral effort to promote better practices in mounting a defensible enterprise legal hold.  A bevy of prominent judges and thought leaders turn out to speak; but, the real star of PREX is Portland itself, resplendent in those precious, late-Summer weeks when one can count on abundant sunshine.  If you’re looking for fine, fun education in excellent company, pencil PREX in for  September 13-14, 2017.  There’s no better time to visit Oregon, and no better event on the topic.

One of the panels this year was “The Perfect Preservation Notice.”  I suspect I was asked to join because I’d written a widely-circulated paper many years ago called, “The Perfect Preservation Letter,” wherein I explored the desirable elements of the letter one should send to an opponent affording notice of ESI sought preserved in anticipation of electronic discovery.  My title was tongue-in-cheek, as there’s no such thing as a perfect “form” preservation letter, a point I made as counterpoint to composer Steve Goodman’s claim to have written the perfect country and western song by virtue of the lyric,

“I was drunk the day my mom got out of prison
And I went to pick’er up in the rain.
But before I could get to the station in my pickup truck,
She got runned over by a damned ol’ train.”

                Song: “You Never Even Called Me by My Name

My message was that, though perfect isn’t the standard, neither is lousy.  We can approach perfect by a modicum of thought and incorporating a few essential elements.   Continue reading

Six Powerful Points for Better Presentations

powerpersuasionIn my law practice, I use PowerPoint more frequently than Word.  Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand.  PowerPoint isn’t a word processor; it’s a visual presentation tool.  You can fill slides with text as you might a word-processed document, but when you do that, you’re killing the power of PowerPoint.

Text documents are pro se.  They speak for themselves.  Presentations benefit from the presence of a narrator, i.e., you sharing your message.  An effective presentation supports your message.  It’s your ally, not your competitor.  Human brains are challenged to simultaneously read text and listen to words.  Written text doesn’t reinforce spoken text; it competes with it.  Our language centers are overwhelmed trying to process both spoken- and written words.  The result is a breakdown in comprehension and retention.  That breakdown is worst when a presentation proceeds at the brisk pace best required to hold attention.  And we need an audience’s attention. Attention is the hardest thing to grab and hang onto in this time of ubiquitous screens and constant connection. Continue reading


sotomayorI’ve just returned from a quick trip to San Juan, Puerto Rico.  I travelled there to deliver a three-hour presentation on e-discovery as part of a day of education commemorating the 50th anniversary of Article III federal courts on the island.  It’s a trip that’s been in the works for some time, and an event about which I was more than usually anxious and discreet. Part of my anxiety stemmed from three hours being a LOOOONG time for an audience to listen to one voice, especially when the topic is somewhat esoteric and technical.  My time slot was the three hour block smack in the middle of the day.  Too, there were more than 500 people in attendance, and I wanted it to be the performance of a lifetime.

But the principle reasons for my anxiety weren’t the numbers in attendance or the fact that the luminaries attending were a constellation of island leaders, including, the entire federal bench, several justices of the Puerto Rican Supreme Court, the Attorney General and a huge chunk of the federal bar–really the cream of the profession in any jurisdiction.

I was keyed up because of the other out-of-town speakers flanking my talk.  It was the most “rock star” program of my life–and I’ve done almost 1,800 presentations at programs of this nature.  The speaker immediately preceding me was James Comey, the Director of the FBI and the speakers following me were U.S. Supreme Court Justice Sonia Sotomayor and First Circuit Chief Judge Jeffrey Howard.  My solo time at the podium was as much as all of their times put together.  Yikes! Continue reading

The Internet of Things Meets the Four Stages of Attorney E-Grief

IoTI lecture about 50-70 times a year, all over the globe.  Of late, my presentations start with an exploration of the Internet of Things (IoT), focused first on my own IoT-enabled life and then addressed to the proliferation of IoT data streams in all our lives.  Apart from mobile phones–the apex predators of IoT–discovery from the Internet of Things remains more theoretical than real in civil litigation; and instances of IoT evidence in criminal prosecutions are still rare.  That will change dramatically as lawyers come to appreciate that the disparate, detailed data streams generated by a host of mundane and intimate sensors tell a compelling human story.

With every disruptive technology, lawyers go through the Four Stages of Attorney E-Grief: Denial, Anxiety, Rulemaking and Delusion.  I considered a stage called “Prattle,” but that hit too close to home. Continue reading

Cross-Matter & -Vendor Message ID

md5At last week’s ILTACON in Washington, D.C., Beth Patterson, Chief Legal & Technology Services Officer for Allens in Sydney asked a panel why e-discovery service providers couldn’t standardize hash values so as to support identification and deduplication across products and collections.  If they did, you could use work from one matter in another.  If an e-mail is privileged in one case, there’s a good chance it’s privileged in another; so, wouldn’t it be splendid to be able to flag its counterparts to insure it doesn’t slip through without review?

Beth asked a great question, and one regrettably characterized by the panel as “a big technical challenge.”

One panelist got off on the right foot:  He said, “I’ve created artificial hashes in the past where what I had to do was aggregate and normalize metadata across different data sets to create a custom fingerprint to do that.”  But, he added, “that’s probably not defensible, and it’s also really cumbersome.”

Pressed by Beth, the panel pushed back.  “It’s because artificial hashes are kind of complicated,” one panelist offered, and not “a trivial technical problem.”  The panel questioned whether MD5 hashes were the appropriate standard or whether SHA-1 would be required, positing that cross-matter deduplication is “something that requires significant buy-in across a broad spectrum of people.”  Beth’s request was ultimately dismissed as “not an easy challenge” and one that would be confounded by “people, process and technology” and “the MD5 hash stuff.”

ILTACON is the rare venue where reasonably well-adjusted and -socialized people engage in lively discussions of such things.  It’s not just that ILTA folks understand the technology issues (“GEEKS!”), we’re passionate about them (“NERDS!”) and debate them respectfully as peers (“WUSSIES!”).

Beth’s idea deserved more credit than it got.  It really is a trivial technical problem, and one that could be resolved without much programming or politics. Continue reading

A Glimpse of China: Prosperity and Purpose

This essay isn’t about electronic evidence; so, if that’s what you came for, sorry.  I just had to spout off somewhere about China.

Most who know me know my lifelong passion for travel.  An astonished, “you’ve been everywhere,” often ends conversations that start, “where have you traveled?”  But, there are places I’ve missed around the globe, and until now, one of those was mainland China.  I’d been to Hong Kong; but, not all think that going to Hong Kong is the same as going to Big Red.

I expected China would be crowded, dirty and grim, like Roman Polanski’s Chinatown, but bigger.  I grew up with images of Communist China: Chairman Mao and missiles on parade: platoons of children marching in khaki with boxy green caps and red stars.  I imagined meals of chicken feet and fish eyes, lots of pagodas and poverty, and street’s teeming with bicycles.  Boy, did I miss the sampan on modern China!

I’ve been on the move in China for a couple of weeks, and am challenged to find suitable superlatives to describe this miracle of progress and prosperity.  I have t-shirts that are older than the thousands of soaring skyscrapers scaling the magnificent city skylines of Shanghai, Xi’an and Chongqing.  Shanghai alone has over 2,000 buildings above forty stories that were built since 2000.

And what fantastic buildings! Continue reading

EDna: Still Cheap and Challenged


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.