“Collecting GMAIL for Preservation” – Craig Ball’s excellent primer and guidance on preserving Gmail ESI using the Microsoft Outlook 2010 product – is a must-read.
Blogs I Follow
I've been skeptical of predictive coding for years, even before I wrote my first column on it back in 2005. Like most, I was reluctant to accept that a lifeless mass of chips and wires could replicate the deep insight, the nuanced understanding, the sheer freaking brilliance that my massive lawyer brain brings to discovery. Wasn't I the guy who could pull down that one dusty box in a cavernous records repository and find the smoking gun everyone else overlooked?
With corporate ESI “haystacks” frequently measured in exabytes (and metastasizing), the sheer volume of ESI makes eDiscovery a risky endeavor – the possibility of missing some relevant needle increases substantially with every additional gigabyte of “un-governed” ESI. Adding to the risk are the myriad ESI forms and formats present in most companies’ data piles, and the creative techniques of individual custodians – like slicing, dicing and storing relevant information outside the ‘sight-lines’ of the IT organization, oftentimes sharing the now-untracked “extracts” with other parties (including partners and suppliers outside of the company). In the absence of a technology “easy button” (that unfulfilled promise of some technology vendors which, when pressed, magically finds all of the ESI relevant to a matter regardless of file type or tortured “data extract and analysis” path), the fear of vulnerability to spoliation claims roosts like some plaintiff-buzzard on the periphery of seasoned eDiscovery teams’ weary minds. Perfection? Not even the proverbial snowball’s chance. The better question is, how much is good enough to keep the buzzard’s gastronomic aspirations unfulfilled? Recent history in cases like Pension Committee, and in courtrooms like Judge Peck’s, suggests that the definition of “good enough” is becoming clearer – and more narrow – as the post-2006 era of blissful technology ignorance fades. While “perfection” remains off-limits, the minimum level of due diligence and competence required of signers of 26(g) certifications continues to rise in many jurisdictions. Judges are increasingly able to “sniff out” inaccurate (or worse – disingenuous) assertions of compliance, and the criteria for good-faith, “to the best of my ability, yer honor” credibility is rising in tandem. Changes to the federal rules that aim to mute outrage over the risks and costs of discovery obligations may ultimately come to pass. Certainly, the debate over the rules’ effectiveness, and what changes are necessary and prudent to address perceived flaws, will likely continue as long as rules shepherding professional arguers exist. But, rules changes are a temporary fix that can’t really address the root issue – e.g., the explosive growth of (largely) ungoverned ESI, in many (most?) corporate litigants’ information ecosystems. Arbitrarily limiting the scope of required discovery diligence to some subset of an undocumented, unmanaged and unbridled information behemoth (even if that is possible) will eventually produce an equally unmanageable corpus. It’s simple math – as the ‘pie’ gets more horribly bloated, so do the slices. Until some vendor actually can deliver the elusive über-tool of eDiscovery (to those waiting: insert thumbs here & prepare to hang painfully), wise companies will avoid the temptation to rely solely on measures (like rule changes) which are outside their control. Rather, an opportunity within the control of every ESI-dependent party in the world – a commitment to improving the governance and management of their own ESI – provides a more reasonable hedge against eDiscovery risks and costs to those who embrace it. It ain’t easy (Google “Sarbanes-Oxley”), and it’s certainly not a trivial investment, which will lead shortsighted and naive companies to categorically reject the notion of actually managing how (and by whom) their information is consumed. Building a sound information-governance capability, despite its potential for benefits in eDiscovery and other hot-button issues (like market intelligence and information security, to name just two) is not for the faint of heart. Buzzards are adaptable, smart opportunists – happy to feast on the unprepared. You can almost hear the gullets growling.
“I continue to notice attorneys are very disengaged with process improvement. It’s usually in the hands of the administrators and paralegals only….the legal industry has the highest requirements for compliance and disaster recovery, but we still find an abundance of law firms working with manual processes and outdated technology. Why?”
Among the 50+ responses posted so far, a consistent focus on process efficiency (variously worded as “profitable”, “rapid”, “faster” and similar terms) emerges as the predominant perceived benefit of process-improvement efforts. Many of those responding went on to observe that speeding up a firm’s processes through improved efficiency, is counter to the “bill a lot of hours” mindset which most professional-services firms (including law firms) instill in their practitioners. It’s a fascinating look at the business of law through the eyes of seasoned veterans, with a sobering dose of the business climate many firms face every day.
Of course, firm revenue (hours billed) is of paramount importance. But in reading through the responses, it struck me that the fraternal “twin” of process efficiency – the goal of increased process effectiveness – was missing from the dialogue. Having spent many years engaged in business-process improvement projects, an opportunity to turn the perspective to focus (in a business-of-law context) on the value of pursuing benefits relating to process effectiveness, screamed for attention.
Business process improvement (BPI) is a critically important, core competence for many businesses. Possibly the most famous among the many industries which employ some version of BPI (as well as similar service-quality methodologies like Total Quality Management (TQM)) is manufacturing, where quality circles and continuous-process improvement techniques have evolved into a veritable survival kit in an increasingly global market. Another well-known example (one with seemingly higher affinity to law firms) stems from the substantial business-process changes experienced in financial operations in many publicly-held companies as a direct result of the Sarbanes-Oxley Act of 2002. Both are examples of BPI which sought – and delivered – major benefits related to process efficiency as well as process effectiveness. So, what’s the difference, and where are the opportunities that law firms could identify and seek when considering an investment in BPI?
Understanding that BPI may seem ‘foreign’, or somehow not applicable, to a knowledge-intensive profession such as the practice of law, an example seemed in order. What follows is a litigation hold-based illustration of business process effectiveness and some potential benefits for law firms and corporate legal departments (shared here for those who are not members of the LinkedIn “Legal IT” discussion group).
While one might ponder whether such benefits as speed, efficiency and profitability provide valid reasons for business process improvement (BPI), there’s another potential upside – process EFFECTIVENESS. That is, does the process produce the required (or desired, or defensible) results with acceptable error rates?
Before readers glaze over, think about a litigation hold – a legal business process which is currently under enormous scrutiny. Debate about what is required for preserving (potential) evidence for subsequent production continues, despite a feverish level of gastric distress already evident. While nobody suggests that “perfection” should be the standard for preserving potentially relevant information in a party’s possession, custody or control, woeful is the litigator faced with an adversary (or worse, a judge) armed with evidence of said litigator’s ineffective lit-hold process. Sure, the process needs to be efficient, but beating the timeline isn’t enough. Increasingly, judges are probing the “how” and “who” aspects of litigation holds (and the measures employed to ensure “quality” results). The definition of “acceptable” continues to narrow as a result. What was good enough in 2006 probably won’t cut it in 201x (see Judge Scheindlin’s recent decision on custodian-driven preservation and collection).
Process-improvement approaches provide myriad, proven tools and techniques for identifying and reducing process issues (“defects”) which lead to sub par efficiency, effectiveness or both. (While the topic is too rich and layered for the limits of a blog comment, a modest search just on Wikipedia yields dozens of useful references for interested readers). The benefits enabled by process improvement are legendary in the manufacturing space (common examples include double-digit productivity increases). But the techniques apply to any business process. Measuring process results – good AND bad, or “desired” AND “defective” – and identifying the underlying cause(s) for variances, are worthwhile steps for ensuring the quality of any business process. More complex processes, especially those with a more “populous” cast of participants, correspond to higher odds that DEFECTS (undesired results) will materialize.
Return (briefly) to the lit-hold example. Imagine a litigator, capably describing a lit-hold process in terms of:
- does this sound like a defensible process? Would periodic reports of common “defects” (like, an incomplete training exercise generating over- or under-preserving because custodians couldn’t fully identify all the potentially relevant sources) and the corrective measures taken as a result (such as specific changes in the questions used during custodian interviews) – over the course of several iterations of sample-and-recalibrate cycles – demonstrate reasonable efforts to ensure effectiveness (compliance) against a party’s discovery obligations?
Perhaps it’s not a thought pattern developed in law school, but it CAN be developed and applied to the business processes lawyers “own”. Examples abound of “thought workers” like mechanical engineers and trauma-ward caregivers (whose level of skill and workplace pressures (at least) resemble those of time-starved and docket-rich attorneys) who have benefited from increased effectiveness of the critical processes in their own jobs.
What are your thoughts? We welcome feedback, especially alternate points of view. Perhaps there are attorneys reading this who could comment from their own experience – any manufacturing-industry general counsel in the audience?
..in the proximity of one’s pie-hole.
The sweet spot for e-Discovery competence is in the ‘grey space’ between legal knowledge (essentially, amassing evidence on support of claims and defenses) and information management (e.g., governance, custodial behavior, technical aspects of storage and retrieval, etc.).
Michael Arkfeld dwells there. So does Ralph Losey. Maura Grossman ‘tested out’ of the exam, and heck, Craig Ball OWNS the place. And the bench provides (although not nearly sufficient in volume) significant players in pioneering jurists like Scheindlin, Grimm, Waxse, Facciola and Peck, among others.
These and other leaders developed their eD cred as an outgrowth of successful legal careers. None were followers, and most are vocal advocates for a much more urgent development of similar skills among their bench and bar brethren. Several have (rightly) felt compelled to take colleagues to task for failing to meet minimum levels of cross-disciplinary acumen required for even the simplest matters of litigious pursuit such as (gasp!) divorces and single-plaintiff employment cases. Rare, indeed, is the eD blogger or national-circuit speaker who claims that many (let alone ‘most’, or ‘enough’) lawyers wield ”grey space” competence commensurate with their own cases’ IT complexities.
Curiously, not nearly as much has been written or said about the skillset populating the other side of the ‘grey space’. Maybe the rumors of lawyer indifference to, as one pundit put it, “lowly” IT skills (and presumably, the “propeller heads” who practice such craft) are true. Maybe it’s fear – of the acronyms and algorithms, or of losing exclusivity of the exalted position of being “the smartest in the room“, the primary prognosticator of pretrial practice, in solo and (often) in secret. What JD or Esq. would dare suggest that “bit-twisters” and “nerds” could lean into some mutually beneficial, shared-benefit
shrinking of the “grey space” in some meaningful way, in any reasonable time frame?
Forget that the very heart of the matter – that 3-lettered monster known as “E S I” – contains the terms ‘electronic’ and ‘information’ (but no Latin phrase or Blue Book-indexed terms). Or that some folks (this author included) have filled 30+ year, fulfilling careers slaying the dragons of business use (and mis-use) of information and the electronic technologies that manipulate it. Or that financial executives had their own IT Waterloo a decade ago (remember SarBox?), and the Chief Operating guys a decade earlier with Enterprise Resource (ERP) deployments – each figuring out a way to exploit IT skills and talent for the benefit of their respective enterprise information dilemma.
This e-Discovery problem is different, some have argued. Technology “snuck up” on the lawyers and cold-cocked an entire profession one day in 2006. While virtually everyone else was quietly conquering the technology obstacles that the past 40 or 50 years of business evolution have birthed, the staid and stately world of matters jurisprudent was somehow self-exempt from the dirty technical details of the businesses and individuals who, nonetheless, frequently sought the learned few’s advice when litigants found a foothold in the mix.
It hasn’t helped that many IT professionals find contentment in passive disengagement from the relatively infrequent interruptions stemming from their General Counsels’ courtroom crises. If some senior partner from outside the company is willing to take responsibility for figuring out the vagaries of how a group of users slices, dices, replicates, broadcasts and otherwise manipulates a mountain of electronic information, then there are hundreds of other demands waiting for the attention of IT staffers.
Whether it’s lawyers delaying some inevitable reconciliation between their own skills and the technical realities of modern business, or technologists forced to confront the differences between masses of ’ordinary’ users and those who find themselves designated custodians in the crosshairs of litigation, one thing is clear – the “grey space” is being squeezed faster and harder than either group is responding. Significant inertia originates from all sides, conspiring to bring an abrupt end to many mid-career litigators’ “honeymoon” with eD and its implications. (Our view of six significant catalysts in the current state-of-the-eD-art, conveyed over the next few posts, lays out the facts of an unexpectedly rapid rise in the pressure to eliminate eD “pretenders”). With apologies to Messrs. Clooney and Wahlberg, et al, the storm brewing in America’s courtrooms promises to sink the practices of unprepared litigators whose blinders mask their naiveté in evolving “grey space” requirements.
So, while the bar-certified leaders in this space implore colleagues to “up their game” and finally develop basic technology skills, the bell has already rung… the gap widens with every Da Silva Moore decision, every Georgetown boot camp, and each disbelieving client who hears their lawyer plead, “Your Honor, this TECHNOLOGY stuff…”. ESI replicates like rabbits on Viagra, information governance continues to get lip service, and the plaintiffs’ bar moves closer to a cogent realization of an intoxicating opportunity.
After a long career in the roiling corporate currents of electronically-stored information (a sizable chunk of which has focused on information-related risk) and over seven years’ of effort exclusively on eD and its issues, this author decided to heed the soothsayers and… lean in from the OTHER side.
With this morning’s email, enrollment in law school has been achieved.
Is the arduous path to a law degree REALLY necessary? After dozens of CLE-eligible sessions (several as host), after two years’ as a TREC volunteer, after reading (and RE-reading, and OUTLINING, and diagramming and.. well you get the picture) Judge Scheindlin’s casebook and every opinion written by the esteemed members of the bench listed above, and despite countless hours talking, working and collaborating with attorneys in every size firm from single shingles to international behemoths, the fact remains that everyone (me et tu) associated with this fascinatingly unpredictable, exploding world of eD needs to do MORE.
That means, suspending disbelief and too-long held paradigms about how computers should never sully the practice of lawyers. That means, cooperating with today’s adversary AND tomorrow’s by sharing knowledge and practical approaches as an investment in the profession – in accessible, freely-exchanged forums and constituencies from the ABA to Sedona and beyond. That means, LEANING IN to the “grey space”, pushing hard from whichever side you occupy, and expecting – and WELCOMING – the efforts of professionals on the other side.
Whether you call it “hubris” or simply, chauvinism, it’s time to discard stale beliefs and suspicions about the complexity and sophistication of “those other guys”. We in the eD space are ALL behind the 8-ball, and the scarce population of truly knowledgeable practitioners on both sides (however vocal and motivated) can’t slow the progress of eD’s evolution, let alone SOLVE the problem.
For a scarred and old (and sometimes cynical) IT guy, that means sucking it up and getting a JD.
What’s the gauntlet in YOUR race to retirement?
Musings on e-discovery & forensics.
A lawyer-centric work flow model created by R. Losey & other attorneys. Opinions expressed here are educational and personal, not statements of any law firms or clients, and should not be construed as legal advice. © Ralph Losey 2012-2013
When evidence is the needle in a digital haystack
When evidence is the needle in a digital haystack