Ah, porn.  The fabric free entertainment that folks just won’t leave at home.  In his concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), Justice Potter Stewart famously said of hardcore pornography, “I know it when I see it.”  If Justice Stewart had practiced in the era of e-discovery, he’d know it well indeed.

Forensic examiners joke that porn is a perk of the job because we come across it so often on workplace systems, mainly in e-mail.  Most is softcore stuff or cheesecake shared more for humor than titillation; but some can be pretty raw.  It can be tortious, as well…and when subjects skew too young, a felony.

Workplace porn is a problem, perhaps nowhere more so than when it’s inadvertently produced to the other side in e-discovery.  You may wonder, “Does that really happen?”  Let me assure you it occurs with astonishing regularity; and I expect it to happen more as we trade human review for mechanized categorization techniques like predictive coding.  Say what you will about bored contract reviewers, pictures of naked folks afrolic tend to catch their eye.  Not so machines…unless tasked to look for skin tones, and even then baby pictures pass for ‘oh baby’ pictures.

As I sit here shaking my head at a production set where porn crossed over, I ask you dear reader: Do we need a porn pass?

By “porn pass,” I don’t mean all-you-can-watch access to LodgeNet’s adult videos next time you’re at the Holiday Inn.  I refer instead to a quality assurance mechanism whereby production sets are filtered for images and video, helping reviewers to visually identify sexually explicit imagery before it’s produced.  It’s easy and quick to do, even in large collections; and certainly worth the effort considering the outsize consequences of inadvertently producing sexually explicit material.

You may say, “C’mon, Craig, a porn pass?!?  Don’t we have enough to do with all the other testing and sampling judge’s demand?”

I hear you, but consider what happens when sexually explicit material slips through.  First, it doesn’t say much for the caliber of review.  It doesn’t put your client’s employees in the best light, either.  Now, imagine your opponent before the Court on a cost-shifting motion: “We asked for documents relating to the widget casting process, Judge, and they produced video from ‘Girls Gone Wild Las Vegas.’  We had to pay a vendor to host and process this trash, and an associate was so uncomfortable, she asked to be taken off the case.”

What are you going to say:  “The transmitting e-mail had a keyword hit, Your Honor?”  No doubt it did, and you probably saved some serious money on the review.  But people tend to get excited by porn (no pun intended).  There’s an understandable sense that such things shouldn’t have been at work in the first place and should never have been allowed to slip through unnoticed.  You and your client are reduced to a leering punchline at the Inns of Court.

So maybe it’s time to add a porn pass to your QA/QC process before production.  Like porn stars, it’s fast, easy and cheap.  And I bet you’ll have less trouble recruiting reviewers when the memo begins, “We need associates to look at porn….

Vendors:  How about making reviewers’ lives easier by incorporating porn pass workflows into your ESI review platforms, via filetype filters paired with gallery views supporting multiple onscreen images–maybe even skin tone detection capabilities?

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