Category Archives: Technology

The Joys of #DocumentReview – Confessions of an #eDiscovery Nerd

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Document review is one of my favorite topics.

There, I said it. Condemned to dorkiness forever. Worse, consigned to the category of having a bent for the mundane, rather than the soaring flights of appellate briefing or the scintillating repartee of court. But bear with me while I argue for why it’s good and how as an industry, we can preserve its benefits.

I’m not sure that document review is necessarily mundane, but there’s certainly not much adrenaline to be found in it and it has been permanently stereotyped as a repetitive, low status task that was once the province of young associates. As it turns out of course, young associates don’t do it anymore. Or I devoutly hope they don’t. It’s been at least ten years since young associates (in any type of firm) were an economically reasonable work force for document review.

However, I’m one of the last cohorts of lawyers that really did cut their teeth on document review, before it was economic malpractice to expect it of me. I still think young associates should do it, but under fairly controlled conditions. These are the conditions that made document review good for a junior associate, in 2000 to 2003:

  • There weren’t nearly as many documents. The business documents in my cases were usually about four years old, and in many cases more than ten years old. In the early to mid-1990s the volume of business email and other electronically stored information generated in corporations had not yet ballooned.
  • Much of my time was spent evaluating and categorizing documents that had been produced to my clients, not making broad general determinations about responsiveness (although I did some of that too).
  • The electronic discovery and document review software industry was still in its infancy. There weren’t many choices and the few options presented documents in a linear fashion.
  • The lower volumes of documents made linear presentation appropriate.

Here is how document review benefitted me:

  • I immersed myself in the facts. I got to know the slang and terminology of the business, the witnesses’ voices and relationships, and the specific types of documents that flowed through the veins of the business.
  • I learned how to extract evidence from chaos. After playing in the boneyard with the facts, I could see patterns and relationships and determine if they matched the existing theory of the case.
  • I learned how to build a narrative from documentary evidence: which documents were good for witness prep, which ones were good deposition exhibits. I learned how to prioritize and aggregate the pieces of the puzzle.

The reasons why young associates should not be doing document review now include:

  • Volume: there is now so much information, that is so much more duplicative, and contains so much garbage that no human should be reviewing large amounts of ESI as a matter of course, much less a highly educated human asset billed out at hundreds of dollars of hour.
  • Staffing: law firms no longer have “excess” associate hours that can be absorbed by document review. Firms are hiring fewer new associates and clients are less willing to pay for their time doing any task, much less one that is perceived as menial.
  • Complexity: review software has become more sophisticated, requiring more training to use effectively. There are also more complex data types to review, such as structured databases and social media. While much of document review involves the same basic tasks (binary decisions about whether material is privileged and whether it goes out the door at all) the tactics and available tools for doing so efficiently have changed. Different types of review call for different software, which can in turn require different work flow and process management to make them most effective.
  • Effectiveness: higher volumes of lower value documents, combined with more pressure on associates to do more complex, higher value tasks means that associates spend less time reviewing and what they review is less valuable. And the infrastructure investment in a review project is likely to be more complex than it was ten years ago, whether that involves technology assisted review (TAR), defensible sampling methodology, tiered review or anything else.

However, all of the benefits of learning a case via immersion in “primary source material” still remain. New litigators who can’t spend large amounts of time reading invoices, correspondence and other topical minutiae are missing an important perspective. I don’t think there are simple, standardized ways to recapture that value because case sizes and economic constraints vary so much. Here are some preliminary thoughts:

Thoughtful use of TAR: TAR methods and software are still in the experimental phases. People have been saying for at least five years that TAR is going to eliminate human review. But it hasn’t and it is extremely unlikely to become “plug and play” unless it develops true artificial intelligence. However, it can be used to reduce volumes and take out “white noise,” creating a review universe that would be manageable and meaningful for new practitioners.

Residency or internship-style training for new attorneys: The professional training model for lawyers is problematic in ways well outside the scope of my topic here, but one area where law firms and other employers of new attorneys have to make decisions is how to give attorneys meaningful on the job training without charging clients by the hour. It would be a simple matter to give attorneys rigorous, immersive training in real case documents if law firms didn’t feel they didn’t needed to have those attorneys as economically productive billing units the minute they pass the bar.

Professional project management: for many years law firms (and possibly government agencies as well) simply assumed that anyone could do document review and that if you pointed associates at boxes of documents a useful set of documents would arrive on a partner’s desk some time later. That might have been true when there were fewer documents and documents had more marginal value. Now it is critical to have staff whose professional function is to assure that the right tools are in place and fully supported, the users are effectively trained on the tools and there’s a quality assurance process in place. Lawyers generally don’t have all of those skills and they certainly don’t develop them unless they have an opportunity to learn them. Deciding which personnel are the best for discovery tasks frees up lawyers for case engagement and fact development

Lawyers should still be doing document review, but in the context of better and more informed management and use of technology.

The Elephant in the Cookie Tin – #eDiscovery, Warrants and New Technology – #GeorgetownEDI Part V

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I studied just enough criminal law to graduate from law school and pass two bar exams, so the law of search warrants is a bit exotic for me: an area where strange beasts lurk. This year’s discussions at the Sedona Conference annual meeting and Georgetown Advanced eDiscovery Institute were the most I’d thought about search warrants in years. The themes were familiar however: how do we analogize new forms of evidence to familiar ones? The answer is, use your imagination, don’t let the newness freak you out, and you can get there from here.

Pretty much every area of the common law in the United States has barely made it to the age of the automobile. Fourth Amendment case law is no different. That isn’t to say we have no case law on search warrants executed for digital technology. Far from it, one Judge at said that few of the search warrants he sees anymore actually look for something tangible. But even the judges who are comfortable in this area still struggle with how to apply the doctrine of “unreasonable search and seizure” to the vast sea of social media information and the dense knot of personal, professional and public information available on portable devices.

As with discovery requests, judges expect specificity with warrants. One judge said “I’m not going to tell you what to put in your warrant, just that I won’t sign one that doesn’t comply with the Fourth Amendment.” Practically speaking, this means that a warrant should not say “all social media,” and whether it can say “all Facebook data,” requires an argument about scope. Search warrants are by their nature invasive, so in the case of a laptop or personal device, how much intrusion is too much? If you’re looking for financial records, can you look at someone’s personal photos? (Probably). If law enforcement has a warrant to search a file cabinet, they can still look in the manila folder marked “photos” for the tax records. But a warrant to search a file cabinet at the office doesn’t necessary extend to the bathroom medicine cabinet at home. Does a mobile device that contains both personal and professional information mean the person now has their filing cabinet in the bathroom? The judges’ favorite answer is “it depends.” Another judge also pointed out that, if one is looking for an elephant, the warrant permits you to search every place an elephant might be found, but you can’t use it as a license to go snooping in cookie tins. It is hard to say in the age of multi-gigabyte personal devices what is a digital “cookie tin,” but parties litigating search warrants should understand which parts of a defendant’s devices and personal data sources ranging from Dropbox to Twitter are linked together and how the defendant uses each of them.

The Georgetown panelists, judges and others, also discussed new technology and other areas of law such the Wiretap Act and the Fifth Amendment privilege against self-incrimination. For example, Google Glass permits non-consensual recording of others by the wearer. Is that a wiretap? One judge says, “No. You look exceedingly unattractive, but you aren’t intercepting a wire communication, so there is no crime.” Where parties have to provide a password to locked or encrypted media, does forcing a person to provide their password trigger Fifth Amendment protection? Generally the answer is no, because it is analogous to surrender the physical key to safe deposit box. Where biometric data (voice print, finger print etc) is necessary to access or search, the judges seem undecided as to whether a fingerprint lock on an iPhone is more like “testimony” thus invoking the privilege, or more like a key (or a hair sample).

This isn’t going to get any easier, but for now the consensus seems to be that the laws themselves still do the job. The concepts of “reasonable” and “probable cause” like “relevance” and “burden” in the civil context are broad and not technology specific. However, the rapid evolution of the law does place a greater burden on judges and lawyers to truly understand the technology and how it used in order to make accurate analogies and sound arguments.

Are you listening? In-house counsel lay it on the line about #eDiscovery #Risk and #Process – #GeorgetownEDI

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I’ve been outside counsel my whole career and the thing that impresses me the most about in-house counsel, from my seat in the ballpark, is that they have a job to do. So they’re mostly no B.S: they don’t have to convince you to buy what they’re selling. When an inside counsel says “you’re not warming my heart,” outside counsel had better perk up their ears and take good notes.

This year at the Georgetown Advanced eDiscovery Institute in-house counsel from some of the largest companies in the world in each of their respective sectors (finance, tech, retail, insurance) spoke on a panel about how they handle eDiscovery. The dominant themes were consistency, process control and risk management. Not all of them have set up a freestanding eDiscovery shop in their organization, but they have all built out a significant eDiscovery management capacity because that is the best way for them to arrive at a repeatable business process. They want to maximize efficient and consistent data identification, collection and processing, which often means having as few different players and transactions as possible.

The speakers described minimizing the number of service providers and identifying and selecting sophisticated service providers for repeat business. This decision-making applies specifically to outside counsel as well. An organization with a lot of high value litigation needs a discovery “beach master” on their case team to handle discovery who knows the organization and knows the legal strategy. What I found surprising was the in-house lawyer speaking was clearly still dealing with some firms who put a junior associate on electronic discovery because it is perceived as a low status task.

Another counsel spoke of conflicting risk mindsets between outside and inside counsel. Every inside counsel I’ve ever spoken to says “outside counsel are too risk averse.” Inside counsel manage risk just like any other business factor. They don’t want litigation counsel telling them they can’t take custodians off of hold because “something” might happen, particularly if outside counsel can’t offer a knowledgeable, risk based evaluation of why a particular group of custodians is on hold in the first place. Outside counsel as a profession are still doing a poor job of aligning themselves, logistically and economically, with in-house litigators.

The goal with centralizing in-house eDiscovery is to eliminate process “drift” and allow focused, incident specific response when and where it is actually needed. Putting together the right team and ediscovery strategy allows for a proportionate litigation response that works for the business. Outside counsel need to know that in-house counsel constantly have to do more with less. Again, what is most astonishing for me about these messages is that clearly these inside counsel were used to delivering them and probably saying variations recently, to actual outside law firms. How can it be that in-house counsel at a Fortune 100 country is still saying “there’s some good lawyers out there that just don’t understand the technology.” Of course there are, but how are they getting in those doors?

There’s a time and place for outside service providers – counsel, consultants, software and eDiscovery providers. When my clients need outside counsel, they really need them. And it’s nice to be loved, but anyone who’s been doing it for a fraction of the amount of time I have knows that you don’t just sit around waiting for the work to come to you. There’s a big part of being in any service profession that involves convincing people of your worth and your purpose in the world. With inside counsel people might not always be happy to talk to them (so they tell me), but there’s a reason they have a job. And “we” don’t get jobs if “they” don’t think we understand their values and incentives.

So here’s what I took home:

  • Don’t just listen passively, but anticipate what your client needs in terms of risk and cost.
  • “Your” litigation isn’t their only litigation. Litigation isn’t special, it happens all the time. Make it a repeatable business process, quantify the economic risk.
  • Understand the value proposition in eDiscovery. Cheap isn’t always the right price. Fair price for good quality is the goal.
  • For heaven’s sake, know the technology enough to be an intelligent consumer and advisor.

 

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

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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

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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.