eDiscovery Daily Blog

• March 21, 2014

This is the eleventh (and final) of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,500 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and just ended nine years writing a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court.  He currentlyblogs on those topics at ballinyourcourt.com.

As usual, Craig gave us so much useful information that we decided to spread it out, yesterday was Part 1 of the interview and here is the rest!

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I have to marvel at the ingenuity of my colleagues who have so effectively deflected the obligation to learn much of the nuts and bolts of eDiscovery.  A mastery of buzzwords and buzz concepts is not the same thing.  You can almost see the eagerness of some to deploy certain ideas that they have picked up as though simply encanting a buzz word is the same as applying it in a practical fashion.  Lawyers focus on the work product privilege as a means to avoid transparency in essential applications.  They trot out something that they’ve distilled from Zubulake, now ten years old.  Again, they are fighting the last war.  They are still over-preserving in shocking ways and still issuing legal holds that are boilerplate.  They’re still failing to give useful information in legal hold notices (as they can’t tell people to do what they themselves don’t know how to do).  We’re seeing little creativity and a copious quantity of uninspired mimicry.  It isn’t working.

The problem I have with this is that it is that eDiscovery isn’t that hard.  We make it hard.  We sit down in a room and start talking about the moving parts and everyone starts getting very depressed.  They’re desperate to seize upon a one-dimensional solution – they want to find a hammer that they can bang against everything.  It isn’t that hard.  Though there are strategies that you need for different kinds of evidence, there are recognitions you must make that there are different users that use data in different ways.  Different levels of fragility.  But, we’re not talking about learning Chinese pictographs here, we’re talking about a small handful of common productivity file types and a tiny handful of mechanisms for communication.  In any other industry, they would be so happy to have so little complexity to deal with; but in our industry, any complexity at all seems to be overwhelming.  And, it frustrates me because, if lawyers would devote a bit of of genuine energy and time to this, and if we made more resources available to them, we could really make not just incremental strides, but great leaps in reducing the cost and anguish associated with electronic discovery.  It’s not that hard, it doesn’t have to be that expensive.  But, it does require a certain minimal fluency to understand what you’re dealing with.

We all work with digital information, all day, every day.  Right now you are taping me on a digital recorder, we’re having a conversation on digital phones where the conversation is being converted into packets and it’s moving back and forth.  I’m staring at two screens now with my email on the left screen and the internet on the right screen with my smart phone and my tablet close by.  That’s modern life.  If we don’t approach electronic discovery with the same engagement that we do with digital tools in other aspects of our lives, we’re doomed to continue to commit malpractice in both how we approach eDiscovery and how we spend our client’s money on eDiscovery.  And, it’s just sad, it remains deeply sad.

We aren’t deploying the right tools.  Soon, our opponents and courts will realize that we’re fighting the last war and that it’s very easy to step around our defenses.  We haven’t put the tools–the weapons in the hands of the infantry – the working stiff lawyer – to allow them to begin to deal with electronic discovery.

How is it going to get better?  Right now, the only path I see is going to be the enthusiast, the individual lawyer who – out of boredom, ambition or aversion unemployment – decides that they’re going to craft a new career path for themselves.  I hear from one of those lawyers nearly every day, so that means that I hear from 150-200 lawyers each year who tell me that they want to do what I do.  That’s great, but the resources for them to achieve that, to get the information they need, are still sparse in the context of law practice.  You can go out there and learn forensics and information systems and IT.  But, to integrate the parts of those disciplines that are attendant to eDiscovery, it’s difficult.  We’re still having electronic discovery taught, by and large, by people who consider it a body of law and who shun its technology aspect.

What are you working on that you’d like our readers to know about?

My mission for 2014 is wake our readers up on the issue of form of production.  That’s a little silly because your readers are among the most enlightened of consumers of electronic discovery.  But, helping requesting parties change the archaic way they ask for ESI has been a big part of what I want to accomplish in 2014.  And, helping them to make sensible choices about forms of production so that they can get complete and utile forms, That’s not always a native form, but it’s rarely static images.  I know that is something that I’ve jawed about for a long time and I imagine there are quite a few people that are tired of hearing me speak about it, but I’m finally starting to get some traction.

Judges are starting to listen and understand.  As we chip away at this absurd practice to turn everything into electronic paper, what becomes clear is that the processes that we’ve developed to produce spreadsheets and PowerPoints in native forms apply with equal force and success to Word documents, and now you realize that you’ve covered the Microsoft Office complement of data.  Those are the files that tend to make up the most common attachments to emails and, oh, by the way, emails can be provided in functional formats that are also complete.  Everyone technologist knows what’s in an email.  It has to have a certain complement of features to be called an email and traverse the internet.  Why don’t we just start providing emails in forms that function?  Helping parties to exchange forms that function is my mission for 2014.

I don’t expect that by next year that I will tell you that everyone has awakened to the fact that native and near-native productions are cheaper and better.  Let’s face it, there are a lot of people conserving very old tools and workflows who will not give them up until they are forced to give them up.  There are all sorts of changes for the greater good that decent, intelligent people resist too long, just as they did with women’s suffrage and civil rights.  I don’t mean to trivialize civil rights by comparing them to litigants’ rights, but changes must and shall come to pass.  We must evolve to become Juris Doctor Electronicus: modern, digitally-capable counsel.

Thanks, Craig, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.