e-discovery 2.0

The legal battles during the discovery phase of the Oracle v. Google Java licensing and patent infringement complaint are now well documented. Just search for “Lindholm email” and you’ll find pages and pages of opinions and blog posts on the case. Why so much fuss over a piece of email? Well, as Judge Alsup aptly describes, this is the type of smoking gun email that has the potential to “turn the case on its head.”  More importantly, this inadvertent email never needed to happen, if the parties had better leveraged existing eDiscovery technologies.

The eDiscovery battle over admissibility of this email, as well as whether it can be a public record, is natural and to be expected, especially in such a high profile dispute. Google has already made five attempts to either claw back these documents or protect them under seal. Besides the question of whether privilege waiver is in fact granted simply by adding an “Attorney Work Product” annotation to email, which Judge Alsup has eloquently addressed in the filing here, there is another interesting question to be considered. In addition to the two email copies that had the above designation, there were nine other sequential drafts, created within a five minute period. These drafts were generated by the “auto save” capability of the email software, possibly as a way to prevent the author of the email from losing partial work. Don’t we all love that feature, since despite all the technological advances computers crash, networks fail, and software freezes, and in those times we’re thankful that our work was indeed automatically saved? However, if these are indeed present, are these drafts discoverable, especially if they have not been shared with anyone?

Although in this instance the intent of these drafts is made evident by the final email, which included the recipients, none of the nine drafts of the email have a TO:, CC: or BCC: address field filled in. So technically, the drafts in their “pre-final” form were never communicated to anyone else. If so, should they even be considered electronically stored information (ESI) that needs to be produced? Let’s say that these emails were never sent and merely existed as drafts, perhaps capturing a person’s train of thought. Are they discoverable?

Of course, determining whether such partial and non-evidentiary ESI exists among your millions and millions of documents to be examined for production becomes increasingly the purview of powerful search and analysis software. In this instance, Google and their legal team would have been well-served by email analytical software that can isolate drafts and offer them for removal from production. Also, using a capability such as Near Duplicate Identification would have identified these drafts as similar to the final ones that were marked as privileged. After all, if the legal team had known of their existence prior to production, they would not have been surprised by the opposing team producing them as key documents.

I invite your comments, especially on the notion that partially completed drafts are admissible as evidence.

Lately, the electronic discovery blogosphere has been, well, a-twitter about twitter and other social media as they relate to electronic discovery. While twitter struggles to find a business model, enterprises and law firms are racing to understand the implications of this latest boomtown of user-generated content that’s being built in out on the frontier of the World Wide Web (or is that Wild Wild West?).

There’s talk of intellectual property being cast out, irrevocably, onto the Internet for all to see. Or slanderous things being uttered for which your company may be held liable. But, hold on a second: is there really anything new here? Anyone heard of e-mail? Web pages? Peer-to-peer? Google? Instant messaging? As Debra Logan astutely points out in her recent post on the topic, “everything that exists is discoverable (at least pretty much).” If you haven’t already, take a look at the FRCP’s definition of ESI and you’ll get her point. So, yes, it’s obviously important to have a common sense corporate policy around what’s appropriate and what’s not for the public Internet, but it shouldn’t be any different from the policy that you should have already had in place regarding blogs, web pages, and email.

What about the other side of the electronic discovery coin: finding information that’s responsive to a request? If anything, social media are more easily discoverable than just about any other form of user-generated content (though admittedly in some cases they can be more transient, which can post unique challenges). And, while it’s not universally true, the argument can be made that the more easily something can be discovered, the lower the cost and risk of that content to you. Worried if anyone on twitter is stealing your new idea for a router architecture? How about the top-secret approach to making coffee you were thinking about patenting? Well, if anyone twittered about it, tracking it down is a snap. Just keep in mind that because of the public nature of social media, it’s likely that the more important the information is to your company in the context of electronic discovery, the less likely it is to live out on the public Internet. Obviously, there will be exceptions. But when there are those exceptions, tracking down the relevant information will likely be a fairly straightforward and relatively inexpensive process.

However, before we dismiss social media as nothing new and something that can largely be addressed through already-existing policies and discovery techniques, let’s consider one aspect of social media that is on the upswing, but often out of the blogging limelight: enterprise applications.

Increasingly, companies are moving to advanced enterprise social media platforms such as Jive or SocialText as a way of improving internal collaboration and making projects run more smoothly and effectively. Because such enterprise platforms are often used on a company’s most important and strategic projects, having robust e-discovery capabilities to allow internal blog, wiki, and discussion content to be captured and placed into a format that can be seamlessly searched along with other more traditional documents is becoming critical to forward-thinking enterprises.

For example, I recently came across a large financial institution that uses Jive SBS as its wiki and Clearwell as its e-discovery solution. What surprised me is that this company has created its own Jive/Clearwell “adapter” that feeds Jive discussions directly into Clearwell as a conversation thread. This is just one example, but I’m sure more will follow. Over time, it will become a requirement for e-discovery platforms to integrate with enterprise social media products. And, rest assured, as that happens, we’ll be sure to tweet about it!

UPDATE: Whit Andrews of Gartner was kind enough point out his (prescient) research note on the subject of e-discovery and social networking from November, 2007. He points out that there is in fact a very important “new new thing” about social networks, which is that they may be able to be leveraged in an e-discovery context to find out more about the people relevant to an investigation. By tapping these publically-available sources of information, investigators may be able to gain better insight into private (i.e. enterprise) information stores to guide the e-discovery process. More detail on this and other insights can be found at http://www.gartner.com/DisplayDocument?id=543110&ref=g_forward&call=email.

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