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These tips are based on a long life of litigation legal practice, including thousands of document reviews going back to 1978. I have seen hundreds of mistakes over the years, especially in the last decade when my work as a lawyer has been limited to electronic discovery. Many of these blunders were made by “the other side.” Some were funny and made me smile. Others were not and led to motions of all kinds. Keeping it real, I have made my own fair share of errors, too. Those lessons were painful but are now deeply etched. No doubt I would have made many more errors but for the generous guidance provided by more senior and experienced attorneys that I have had the very good fortune to work with. It is with this great debt in mind that I offer up these tips.
Click here to download a Word version. [An earlier version of this article was published last year.)
Some Mistakes are Funny
On the funny side of observing document review mistakes, I will never forget the time, not too long ago, where the other side produced documents to us with the most important ones placed together up front. That was a surprising electronic zipped production to open. It was fairly obvious what had happened. The highly relevant documents were not mixed in, as they should have been, with the other more plebeian merely relevant documents. Instead, the hot documents were all together at the front of the production with the lowest numbers. (Sixth tip – never do that!) Our team laughed at the error, as we easily and quickly found lots of great stuff to help our case. Still, we kept a discrete silence and did not gloat. (Seventh tip – never do that either, at least not in front of them!)
Opposing counsel, who later became a friend, admitted the error to me months after the case settled. He found out what happened a few days too late. Even he chuckled as to how inadvertently “nice” they were. As is often the case, the mistake did not really matter in the end. We would have recognized the hot documents anyway. As usual, when errors happen in e-discovery, he blamed the vendor. They almost always get blamed for mistakes, but the truth is vendors are just tools of the attorneys. (No offense, dear vendors, tools are important.) The attorneys are almost always the ones ultimately responsible for screw-ups.
Lessons of History
The five tips shared here are born out of a long history of document review. How relevant could past legal practice be you might ask? In 1980, just like today, document discovery was and still is a search for documents and communications that have probative value . The tools and document forms have changed, but not the basic tasks. The federal rules have changed too, but not that much, and the ethics of an attorney-controlled discovery system, not at all.
Discovery has always been a search to determine what really happened, to sort out the conflicting stories and find evidence for use at trial. Legal counsel never creates facts. That is called falsification of evidence and is a crime. Attorneys just find the facts and then do the best they can with them; make them look as good as possible by legal argument and clever presentation. The discovery effort has always been a fairly cooperative one between attorneys. It has always been a question of trust but verify. Conversely, there have always been a few slime balls in the Bar who do not get that, but that is what judges (and Bar ethics committees) are for, and they soon sniff out the weasels. All things evolve and change, but some basic patterns remain the same.
By the early nineties I sometimes had to look beyond paper files and investigate computers for possible evidence. That occasionally happened in trade secret cases, much like today. Forensics was fairly easy back then. My favorite ESI search and review tool was Norton Utilities, which I had been using since the mid-eighties. Like most computer lawyers around those days, as we were called, I was by necessity a DOS master, and, until around 1997 a one-man IT department for my law firm. It only took a few hours a week to do that for my then twenty person law firm, along with the help of an outside “computer repairman.” I would always learn a lot from those guys.
The frequency of document reviews that included computer files increased somewhat in the early nineties as law firm clients began using more technologies. By then most corporations and many individuals began to rely on computers for work, although almost nobody but a few techno-nerds used email, electronic messaging, and pre-Internet online communities. (I was considered an odd-ball hobbyist for using electronic messaging with CompuServe, The Source, The Well, etc., in the mid to late eighties, and the Internet since 93-94 with Mosaic, then NetScape.) Instead, facsimile machines were the rage at that time, and they just generated more paper discovery.
Although the presence, or not, of computer files was a discovery issue in trade-secret and non-compete cases in the early 90s, electronic communications discovery was still not a factor. The adoption of tech by businesses and lawyers seemed slow to me then, and still seems slow today. (When will companies and law firms adopt the AI technologies that have been readily available for years now?)
Discovery of computer files, as e-discovery was then called, started to take off in the late nighties as corporate email finally became popular. It was part of the public’s discovery on the Internet. I had the opportunity back in 1996 to write a chapter on Internet law for the then popular book by Macmillan (Que), Special Edition, Using the Internet (3rd Ed. 1996), which is incredibly still sold on Amazon.
My chapter in the book was the first after the introduction and was titled by the editors, “Your Cyber Rights and Responsibilities: Law and Etiquette.” I still smile when I see how they tasked me not only with explaining all of the Law of the Internet but also proper online etiquette. I tried to address the legal issues in 52 pages (I pretty much ignored the etiquette part), including discussion of all of the key cases of the day. I covered things like free speech, online agreements, privacy rights, crime, security and cryptology (I even included a coded message, which, surprisingly, the editor decrypted and then made me clean up). These are all still hot issues.
When businesses started using the Internet, too, the discovery and review of electronic information really started to take off. That is when electronic document review was truly born. That is also when the first e-discovery vendors like Kroll and Attenex (now FTI) started to become large national organizations.
By early turn of the century, potential evidence in the form of computer files and emails were multiplying like tribbles. The amount of electronic evidence started to explode. It has been a dangerous avalanche of e-discovery overload ever since. The needle in the haystack problem was born that still challenges document review today. See Document Review and Predictive Coding: Video Talks – Part One.
Like several others I sensed the danger in the information explosion, saw how it was overwhelming discovery and making it too expensive. For that reason in 2006, again like several others (although I was the only one in Florida), I stopped practicing as a commercial litigator and limited my work to e-discovery only. Since that time electronic document reviews have been front and center in my practice. To be honest, I have not even seen an original paper document in discovery since that time, although I have heard they still exist. (Other attorneys have shown me their paper cuts to prove it. What a dangerous job paper document reviews can be.)
Five Videos Explain the Five Tips
The five tips shared here are rooted in the ancient history of paper productions, and pre-vendor computer file search, but are designed for current electronic practices and post-2015 amended rules of procedure. After a lifetime of work in this area, there are more tips I could provide, and will do so in the future, I’m sure, but these are the ones that occur to me today. The videos below explain these five tips and how you can implement them.
In this opening 11-minute video I share what may be the most important tip of all: the avoidance of time pressures and resultant hurried activities.
Tip No. 1 – Never Put Yourself in a Time Bind – Be Proactive
The next video explains the second tip, Ethics. It is always important to do the right thing, including the production of requested relevant documents that will harm your client and their case. Ethics in document review, like in all other areas of legal practice, indeed, like all other areas of life, is imperative, not discretionary. My thanks to the legal mentors in my past who drilled this into me from my first day out of law school. Any success I have enjoyed in my career I owe, at least in part, to their good influences.
Call this Ethics advice the Boy Scout tip if you wish, but it really works to avoid a panoply of errors, including potentially career-ending ones. It also helps you to sleep at night and have a clean conscience. The slippery slopes of morality are where the worst errors are made in all legal tasks, but this is particularly true in document review. Discovery in our system is run by lawyers, not judges, magistrates, or special masters. It is based on lawyers’ faithful conduct and compliance with the rules, including the all-important rules requiring the voluntary production of evidence harmful to a client (a notion strange to many legal systems outside of the U.S.).
Lawyers know the rules, even if their clients do not, and it is critical that they follow them earnestly, holding up against all pressures and temptations. At the end of the day, your reputation and integrity are all that you have, so compromising your ethics is never an acceptable alternative. The Rules of Professional Conduct must be the guiding star of all legal practice, including electronic document review. It is your job as a lawyer to find the evidence and argue its meaning; never to hide it. This video is a reminder of a core truth of lawyer obligations as officers of the court.
Tip No. 2 – Ethics and Electronic Discovery
For more of Losey’s thoughts on ethics and e-discovery, see: Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery, 60 Mercer L. Rev. 983 (Spring 2009); Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.); e-Discovery for Everyone, Chapters 15-19, (ABA, 2017).
Our third tip is Focused Concentration, which was mentioned in passing in the Part One video on Time, and also tips four and five, on Worms and Check Again. The Focus tip is based on my own experiences in cultivating the ability to concentrate on legal work or anything else. It is contra to the popular, but erroneous notion, a myth really, that you can multi-task and still do each task efficiently. Our brain does not work that way. See Eg. Crenshaw, The Myth of Multitasking: How “Doing It All” Gets Nothing Done; and the work of neuroscientist Daniel J Levitin, who has found the only exception is adding certain background music. All document reviewers who wear headsets, myself included, know this exception very well.
Tip No. 3 – Focused Concentration
For more on quality control and improved lifestyle by focused attention and other types of meditation, see my earlier video blog, Document Review and Predictive Coding: Video Talks – Part Six, especially the 600-word introduction to that video that includes information on the regular meditation practices of Supreme Court Justice Stephen Breyer, among others. See A Word About Zen Meditation. This practice helped Steve Jobs and helps Justice Breyer and countless others. It could help you, too. Also see these excellent online services, Insight Timer and Mindfulness App. These practices will, at the very least, allow for more focused attention to what you are doing, including document review, and, thus, greatly reduce mistakes.
The next WORMs tip is a simple technical one, unique to e-discovery, where WORM is an acronym that means write once, read many times. I prefer to make productions on write-only or recordable only CDs, aka, CD-R, or DVD-R, and not by file transfers. I do not want to use a CD-RW, or DVD-RW, meaning one that is rewritable.
Tip No. 4 – Use WORMs to Produce
Speaking of WORMs, did you know that the SEC requires all broker-dealers to preserve its records for three years in a format that prevents alteration? That means our Write Once Read Many times format. SEC Interpretation: Electronic Storage of Broker-Dealer Records, 17 CFR Part 241 [Release No. 34-47806] (5/12/13).
On December 21, 2016, twelve large broker-dealer firms agreed to pay fines totaling $14.4 million to the Financial Industry Regulatory Authority(FINRA) over allegations, in FINRA’s words, that “they failed to preserve electronic records in a WORM format that couldn’t be altered.” This has to be the all-time most expensive “can of worms.”
The fifth tip of Check Again, has to do with the importance of redundancy in quality control, subject only to proportionality considerations, including the tip to spot check your final production CD. I discuss briefly the tendency of lawyers to be trapped by paralysis by analysis and why we are sometimes considered deal killers by business people because we focus so much on risk avoidance and over-think things. There has to be a proportional limit on the number and cost of double-checks in document review. I also mention in the fifth tip my Accept of Zero Error and ei-Recall checks, which are quality assurance efforts that we make in larger document review projects.
Tip No. 5 – Check Again
These are five tips to help everyone doing electronic document review. They are not necessarily the “top five,” but they are all important. We suggest you drill these five best practices into your document review team.
© Copyright 2017 Ralph Losey, e-Discovery Team.