E-Discovery and the Zamundan Royal Backside Wipers

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01Nov2013

E-Discovery and the Zamundan Royal Backside Wipers

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By Craig Ball

I’m on a crusade to underscore the need for lawyer competence in that crucial “e” that precedes “e-discovery.”  It’s no longer enough to understand the law in isolation; today’s lawyer must understand some fundamentals of information technology and electronic evidence.  My efforts often prove quixotic, as everywhere I’m met with the attitude that electronic discovery isn’t a lawyer’s concern:  “It’s something you hire people to do,” they say.

Certainly, we must hire people to do things we cannot possibly do.  But I contend that we hire people to do many things we could learn to do ourselves and do economically.  Remember Eddie Murphy’s royal backside wipers in Coming to America? All it takes is money to burn, and, if it’s someone else’s money, who really cares?

But at what point do lawyers outsource themselves into superfluity?  Clients can hire vendors. Bigger clients can and should bring much of the e-discovery process in-house.  Will lawyers remain captains of the e-discovery ship or go the way of the local bookseller and video rental shop?  Are lawyers increasingly just middling, meddling middlemen in e-discovery, intermediaries serving mostly to inflate cost and adding little value?

Of course, my brethren are saying “no,” or more likely “NO!!!” They’ve got a point.  They’ve come this far without having to learn 5% of the features in Microsoft Word, so why waste time on the difference between system and application metadata or the ins and outs of search?  We are like the Crawleys at Downton Abbey: our indulgent way of life supports many who depend on our inability to fend for ourselves.  Our incompetence gives the Royal Wipers their raison d’être.

But I remain resolutely unconvinced that the status quo can or should endure.  Clients will not pay for Royal Wipers forever, and we should not ask them to do so.

Take the following top-of-my-head list of lawyer duties in e-discovery.  As you peruse them, consider how many are non-delegable responsibilities and which can and which cannot be done well by lawyers lacking a grasp of the fundamentals of information technology.

I. Work with clients and others to identify and preserve the sources and forms of potentially relevant information.

  • Frame and analyze the legal issues
  • Inform as to discovery needs and duties
  • Inquire as to potentially relevant sources and define uses, forms, and retention
  • Advise as to risk and costs of preservation
  • Solicit opponent’s requests and objections, as warranted
  • Determine the scope and duration of legal hold
  • Ensure proper communication of legal hold responsibilities to correct custodians
  • Document, audit, and defend legal hold scope and execution
  • Modify or terminate legal hold based on developments in the litigation

II. Identify roles and delegate responsibilities

  • Assess the client’s internal information technology and e-discovery resources and skill
  • Assess the client’s internal collection and culling capabilities
  • Determine if outside experts or service providers are needed and identify candidates
  • Secure consent and funding commitment from client or carrier
  • Select and engage qualified experts and service providers
  • Craft a discovery plan and assign roles, responsibilities and authority
  • Ensure clear lines of reporting and communication are established

III. Work with clients and others to establish the criteria and methods for collection and culling of relevant information

  • Analyze and articulate the scope and nature of information sought in discovery
  • Set and test criteria for defensible exclusion and quality assurance
  • Settle upon form, medium, and organization of collection, including system metadata fields
  • Select criteria and methods to segregate potentially privileged content
  • Assess the limitations and learn the syntax of the search tool to be employed
  • Craft queries calculated to identify responsive information and minimize false positives
  • Establish quality assurance and quality control mechanisms precedent to production
  • Set deduplicatation method to be used and deduplicate collection, tracking suppression

IV. Select and communicate contemplated review and production methodologies

  • Select review platform and review methodologies (tools, teams, tags and tiers)
  • Determine form or forms sought, and file timely objections, as needed
  • Determine methods for logging and redacting privileged items
  • Advise as to form or forms of production that will be supplied
  • Supply sample load file formats and other exemplars, as needed

V. Meet and confer

  • Present contemplated search and culling methods to opponents
  • Solicit objections and proposed alternatives to contemplated methods
  • Explore cost sharing and shifting
  • Inquire into opponent’s contemplated search and culling methods
  • Present objections and propose alternatives to opponent
  • Seek agreement on methods for logging and redacting privileged items
  • Secure agreement to terms of FRE Rule 502(d) order
  • If TAR processes will be employed, secure agreements on process and validation
  • Memorialize agreements and resolve disagreements through hearing or otherwise

VI. Review, Process, and Produce

  • Monitor process for scope and compliance
  • Final review of production and privilege log
  • Assess production for sufficiency with respect to FRCP Rule 26(g) certification

I see very few steps that won’t suffer in the hands of a lawyer with a poor grasp of information technology.  I see many that can be done well by a lawyer with a modest grasp of IT.  We needn’t turn lawyers into rocket scientists, but can’t we expect them not to stand under the boosters at liftoff?

Yesterday, I spoke to 150 lawyers about ways to slash the cost of e-discovery.  It was challenging because more than 90% of the general practitioners attending reported that they had never handled a case involving ESI.  [No, I was not in Lancaster, Pennsylvania.]  How do you tell people who’ve no context for e-discovery how to do it more efficiently?  One of my cost savers entailed lawyers becoming more conversant in information technology as it intersected with e-discovery.

When I finished, a woman who’d attended approached me in the hallway to express her frustration that IT folks use a lot of jargon and initialism when they discuss their work.  She insisted that it was the job of IT to learn to speak to lawyers in terms that lawyers can understand.

I countered that the IT folks speak the peculiar language of their profession, much as lawyers do, and that before lawyers venture into IT, perhaps lawyers should learn to speak a little geek.  I unwisely added that one wouldn’t go to Paris and complain that everyone speaks French.  Her look required no translation.  It plainly said, “merd-tete” before she turned on her heel and stalked off.

I made my point badly, yet the fact remains that if you have the rare need to understand French, you can hire a translator.  But if you’re going to live in France, it makes sense to gain a little fluency in French.

Mon amis, we are not just visiting e-discovery; we live here.   I wouldn’t hire the idiot du village électronique to be my lawyer, would you?

To the lawyer of 2025, e-discovery and information technology will be what the Internet was to the lawyer of 1995 and the personal computer was to the lawyer of 1985.  What was once the realm of the more technically adept becomes an indispensable tool in our own capable hands.  You needn’t wait.  You can become the Promethean lawyer of tomorrow today.

About the Author

Craig Ball of Austin is a Board Certified trial lawyer, certified computer forensic examiner, and electronic evidence expert. He’s dedicated his globetrotting career to teaching the bench and bar about forensic technology and trial tactics. After decades trying lawsuits, Craig now limits his practice to service as a court-appointed special master and consultant in computer forensics and electronic discovery and to publishing and lecturing on computer forensics, emerging technologies, digital persuasion and electronic discovery. Craig writes the award-winning Ball in Your Court column on electronic discovery for Law Technology News and is the author of numerous articles on e-discovery and computer forensics, many available at www.craigball.com. Craig Ball has consulted or served as the Special Master or testifying expert in computer forensics and electronic discovery in some of the most challenging and well known cases in the U.S.

Craig Ball © 2013. All rights reserved.

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