Yoga, Socrates and Jefferson’s Tweets – #eDiscovery #BigData and #Social Media at #GeorgetownEDI

As the eDiscovery trade matures and more events draw national attendance, Georgetown Law’s Advanced eDiscovery Institute is still top of the pack in its 11th year. This year’s Institute (November 20-21) was a packed house of 600 ediscovery nerds, gathering to listen to leaders in the field speak on panels, tease each other with in-jokes about Technology Assisted Review, collect pens and chargers from the sponsor tables and get CLE credit. The judges most knowledgeable in the field are almost always there. This year featured a special address from retiring U.S. Magistrate Judge John Facciola, who got a standing ovation when he started and when he finished. I’m going to do brief write ups on several of the panels over the next couple of days, but the overarching theme for me, as it was at the Sedona Conference meeting a couple of weeks ago, is the extent to which the capabilities and social role of technology are outstripping the law. A recent New York opinion on social media pointed out that Thomas Jefferson and other Founders would almost certainly have tweeted. They partook in the public discourse of their own day with vigor. But even still lawyers and judges have to stretch applying legal reasoning from 1789 to Big Data, GoogleGlass and Facebook. It’s like yoga for the legal mind: you can get there if you try, but it feels wrong, even if it’s ultimately good for you.

Hon. John Facciola (image credit Ralph Losey)

Hon. John Facciola (image credit Ralph Losey)

This year’s panels included an overview of recent cases on social media production, discussion of warrants and mobile devices, in-house strategies for managing the economic process of high volume ediscovery (always one of my favorites), a lot of discussion of Big Data and the obligatory overview of the revisions to the Federal Rules of Civil Procedure. Just about every panel included a sense of speed and digital change, swamping the most analog of professions. (To be honest, law isn’t even analog). Speakers seemed game, but a little bit dazzled in the face of fitbit data, dense layers of social media metadata and fingerprint locked phones.

Socrates

Socrates

So far the judiciary and the legal profession seem generally comfortable that we will be able to handle new forms and volumes of data that were only possible in speculative fiction when we started practicing. (I’m talking when I started practicing. I’m not even sure that there was the capacity to speculate about some of the things we have today when Judge Facciola started practicing). A contract is still a contract, a tort is still a tort, relevance is still relevance. The incapacitating expense of litigation and the challenge that poses to the integrity of the judicial system is growing. But that isn’t a factor of technology. It’s part of the 1%-ization of our entire economy and society. So while Judge Facciola played out a dialogue between Socrates and himself about the morality and efficacy of the adversary system, that’s the question that’s always with us. It remains to be seen whether the adversary system’s flaws – incentives to hide evidence and fight over minutiae – get worse with expanding technical complexity, or exist independently of it.

Moving the Law Forward in a Just and Reasoned Way

The Sedona Conference. What is it exactly? Jason Baron came up to me at a DRI event in 2008 and said “you simply must come and hang out with us!” It took me six months and then I ended up spending my entire first Working Group 1 meeting in my hotel room (in Palm Springs, which is hella difficult to get to) on calls with the Court in Delaware and some very crabby opposing counsel. But a couple of meetings in, I started to get my Sedona legs and I was pretty happy. First, because they were talking about things like quality legal process management and I thought “I’ve found my people!” The second reason to be happy about joining Sedona is because it’s a chummy group, although it’s a lot bigger now than it was five years ago.

Sedona is a non-profit legal think tank or “thought leader” as they call themselves. “The mission of TSC is to drive the reasoned and just advancement of law and policy by stimulating ongoing dialogue amongst leaders of the bench and bar to achieve consensus on tipping point issues.” When I joined it was already evolving away from its early years as a small room full of (mostly) dudes mulling over best practices for preserving and producing electronic information. But they were still guiding a rapidly developing field that not a lot of people understood or cared about. The meetings were still cozy, nerdy and cerebral. Veterans welcomed newcomers and remembered them the next year.

What does one DO at Sedona actually? A LOT of talking, that’s what. Then everyone goes home and writes and talks about it some more at the next meeting. After a while Sedona publishes a Commentary on a topic like Quality in the eDiscovery Process or Proportionality. Then judges say things like “Have you read the Sedona Cooperation Proclamation? Go home and read it and come back to me about your ‘failure’ to agree”. (nb: I’m talking specifically about “Working Group 1” of the Sedona Conference, focusing on electronic discovery, as opposed to the Working Groups that focus on antitrust or patent practice).

There’s a rule that what happens at Sedona stays at Sedona so you’re not supposed to quote anyone because a lot of the folks there have to oppose one another, appear in front of one another and otherwise have cover for what they say. One also keeps work in progress close to the vest and avoids association with commercial service providers. But mostly its people who love and understand eDiscovery talking about it detail: “What is the best practice for handling cloud data and how do we want to convey that idea?” “Why was a particular decision about the Stored Communications Act important?” “Should we do a commentary on Ethics?” “How do practitioners really understand the term ‘metadata’ if at all?”

This year I am struck by the degree to which the law writ large is grappling with rapidly moving technology. It’s nothing new that law moves slowly and technology moves quickly. But we are now working on ways in which to analogize smartphones, Googleglass, facial recognition software and wireless enabled household appliances with laws that speak in terms of police officers knocking on doors and asking to look under the bed. And the highest court in the land is made up of people who don’t use email and in some cases don’t drive their own cars (although at least they think a warrant is necessary to search a cell phone). In a group of people who have primarily been concerned about finding and organizing electronically stored information, suddenly we are discussing how to do that with information that some of us aren’t entirely certain should exist at all.

There’s no good answers for all the dilemmas at the intersection of law and technology. But I’m comforted by being around a group of people that care deeply about the answers and are willing to spend time talking about solutions.

I’m a Litigator and I’m Here to Help

The managing partner of one of my past firms once said, “I hate when litigators come around. It’s just so much bad feeling! Most of what I do is building things and creating things and making people happy. I love making people happy. But when you bring in a litigator, no one’s happy. It’s all fighting and destruction. I see them coming and want to run.'” He was a highly successful M&A lawyer and he was only partly joking.

At the time I was a mid-level associate and his words really rubbed me the wrong way. I loved my job and I loved my clients and was thinking “Why do you have to be hating on litigators! Maybe you shouldn’t screw stuff up so we don’t have to bail you out.” But as time went on, I got a better feel for what he was talking about. No one needs a litigator unless something bad is happening, or is pretty likely to happen soon. Litigation is expensive, it isn’t in anyone’s plan and unless you’re big enough to have constant or regular litigation, it throws everyone off their game and budget. So I tried to get in the habit of telling new clients, “I’m sorry you have to even deal with me. Just because I like my job doesn’t mean you like having me here, and we’re going to try to make this go away as painlessly as possible.”

This is a hard lesson to learn for a lot of litigators. Most litigators do it because they love it. Classic litigation has a gladiatorial adrenaline charge. Even if you’re not going to trial often (and most commercial litigators don’t), the jousting with opposing counsel on the phone, on paper and in hearings can be a lot of fun. At least that’s why a lot of litigators do it. They like the zip and thrill of it: the battle, the risk and the eventual triumph. But commercial litigation costs a lot of money, even if you can turn it into a rational business process (I think you can, but that’s the topic of another post). When I as the litigator get paid, that means someone’s paying me instead of using their money to do something they really wanted to do. I have to keep that in mind.

That’s the other thing I remember learning: the first time I heard someone say “clients aren’t in the business of litigation, they’re in the business of making stuff, or selling stuff or buying stuff.” That’s pretty basic, but it’s a hard thing for outside litigators to remember because we ARE in the business of litigation. It’s the stuff we “sell”. It really does help to say it out loud, to oneself and one’s clients.

So that’s the challenge. Being a litigator means your bedside manner has to be serious and conciliatory. Don’t be the oncologist waltzing in and saying “I looovve these tumors! Let’s do this thing!” Seriously, I’ve been doing this for a while and I’m still reminding myself. Because to be honest, I do kind of love it.

Why the Octopus?

When I was in college I developed a metaphor for the end-of-term process that involved a battle with an octopus. I was struggling with a many armed leviathan and each time I managed to get one tentacle unwound, another would loop on to my arm or leg. But eventually I would get all the papers written and the exams written and it would be Me: 5 | Octopus: 0.

As I got older I discovered that actually octopi are pretty charming. They are highly intelligent, curious and have a sad habit of escaping from aquariums when bored. They collect interesting objects, play with toys and love to open jars and climb inside them. Because they have no bones they can squeeze through extraordinarily small spaces.

When I was faced with the need to describe what I was doing, I settled on iOctopus Consulting because it seemed a good fit for both litigation and ediscovery: persistent, pervasive (or invasive, if one is the jar or the clam) and eccentric but smart. Litigation requires flexibility, persistence and intelligence (and being a bit odd can help). Electronic discovery requires the ability to extract information from a number of peculiar and difficult places. Having eight arms would be really helpful.

Put that together with an old design that my mother made 30 thirty years ago (in embroidery no less) and some kind and talented artistic friends (Steve Lieber and Precious Bugarin) – presto! a logo and a brand!

Ivory octo