e-discovery 2.0

Next week, as most of you know, is the Superbowl of legal technology events.  And, so if this is a newsflash, you’ve probably found this blog by searching for the European Cockpit Association (“ECA”).  If on the other hand you have an unnatural affinity for the other ECA – early case assessment — then you’ve probably been planning to head to this year’s LegalTech show immediately after the last one ended.

For fear of gratuitous self promotion, I will be moderating several panels with e-discovery pundits on the first day. Akin to the upcoming Superbowl, these “Supersessions” will be chockablock with EDD luminaries and it’ll be all I can do to get a word in edgewise.  Below is the schedule. Feel free to pre-register since we expect a packed house.

1:00 – 2:00 pm: The E-Discovery Expert Panel.  This session will discuss best practices in e-discovery. Panelists include:

• Jay Brudz, senior counsel, legal technology at GE;
• Ron Best, director of legal information systems at Munger, Tolles and Olson, LLP, and
• Brian Hill, senior analyst at Forrester Research, Inc.

2:15 – 3:15 pm: Strategies for Transparency and Cooperation in E-Discovery. This session will discuss how to move toward a more cooperative resolution of legal disputes.  Speakers include:

• Sean Gallagher, partner at Hogan & Hartson, LLP and
• Lauren Schwartzreich, associate at Outten and Golden, LLP

3:30 – 4:30 pm: Ask the E-Discovery Doctors. The “doctors” will take questions from the audience and provide their prescriptions for a wide-range of e-discovery topics.

• Craig Ball, attorney and president, Craig D. Ball, P.C.
• Ralph Losey, attorney and co-chair of E-Discovery Practice Group, Akerman Senterfitt,
• George Socha, attorney and president, Socha Consulting, LLC

While it’s probably not fair to pick a favorite session, my sense is that the last one will be the most anarchical, chaotic, and stimulating, assuming that the speakers don’t take the faux Doctor thing too far (yes, they will be in scrubs).

Please come by to get your recommended daily dose of e-discovery insights.

In the spirit of the popular New York Times magazine feature, with this post we inaugurate what we hope to be a long-running series of interviews with e-discovery luminaries to get their take on emerging ideas and trends (and hopefully have some fun as well).

Today’s questionee is e-discovery and forensics expert (and popular Law Technology News columnist) Craig Ball.  Craig’s combination of wit and insight speaks for itself, so let’s just get right to the questions.

1) The cases that are on everyone’s mind are O’Keefe/Lundin and Victor Stanley. What’s the practical impact of these rulings to the e-discovery practitioner?

Certainly these decisions have captured my enthusiastic attention.  Lawyers now have to devote greater care and thought to electronic search, and wake to the empirical evidence establishing the shocking shortfalls of keyword search in unstructured ESI collections.  The days of “let’s try these search terms and see what happens” are numbered.  Queries that will be run across mushrooming collections must pass muster in terms of noisiness, ambiguity, potential for misspelling, affinity to stemming, synonyms, slang, acronyms, IM-speak and other criteria unfamiliar to a profession that prides itself on precise expression.  Lawyers need to embrace concepts of “precision,” “recall” and “sampling” with the same fervor we once brought to the Statute of Frauds and the Rule Against Perpetuities.

Currently, lawyers on both the north and south sides of the docket are the unjust beneficiaries of slipshod search.  Requesting parties benefit from the economic leverage attendant to costly-yet-unavailing fishing expeditions while counsel for producing parties mint obscene pyramidal profits reviewing mountains of electrochaff.  Despite all the vitriol, rarely does either side’s counsel set out to exploit flawed searches.  It’s mostly blissful ignorance at work, coupled with little incentive to fix what’s broken.  Accordingly, Judges like Facciola and Grimm are picking up the baton and running with it.  It’ll be a long, tough race—and not every jurist will head for the tape—but I applaud those who’ve left the blocks!

Search demands nuance, discipline and scientific method.  Prepare to routinely test queries against sample collections, as soon that practice will be as commonplace as DNA testing in paternity cases.

2) What can e-discovery technology providers do to help?

At the risk of appearing ungracious, I can’t help but note that vendors eat at the same gluttonous table as lawyers, and vendor marketing is often so much snake oil.  Until the EDD vendor community takes a longer view of the market, stops building businesses for acquisition and starts building them to last, I don’t think they can be of much help.  The industry should stop pretending their processes and software are “proprietary” and touting their secret sauces.  Instead, how about delivering consistent, predictable service and pricing delivered by experienced, reliable and unflinchingly honest, genuinely knowledgeable personnel who welcome the chance to help lawyers understand this stuff.  If employees stayed around more than six months, that would be nice, too.

3) You recently participated in a new track at LegalTech West called FutureTech.  For those who missed it or the follow-up podcasts, what’s an emerging e-discovery trend that you think might take people by surprise?

Several come to mind.  Mediated meet-and-confer, for example.  The cost of a failed EDD effort can dwarf the amount in controversy, so it makes sense to turn to neutral, technically adept intermediaries to help resolve nettlesome questions, of scope, search, forms of production and cost sharing.  Folks just behave better when company comes.  I also foresee divergence between discovery and the other traditional phases of litigation.  We may see entirely different teams handle discovery in a zealous but non-confrontational manner, leaving the scorched earth stuff to others.

Another development that will sneak up on most lawyers is the growing marginalization of text.  As natural interfaces emerge—where you will talk or gesture to your computers—and as communication gets more real time and visual, words will manifest conduct less frequently.  Take YouTube.  I don’t get it—to me, it’s silly and boring—but it’s rich and exciting to my kids…and text is tertiary.

Something else that will change is where we look for evidence.  If you were pursuing discovery against a teenager, where would you go to locate their most revealing ESI?   Social networking (virtualized storage)?   Cell phones and laptops (portable devices)?   Gaming devices (alternate platforms)?  In ten years, don’t imagine they won’t favor and extend the tools they grew up with.

Data is the ultimate portable commodity, so it’s odd we don’t take our computing environments with us. We will. If desktop machines survive, they will be little more than screens with network connectivity temporarily hosting the virtual identities we carry in our pockets or store online. Local hard drives will be an increasingly irrelevant place to search for files as EDD turns to personal storage devices and online storage.

Other trends lawyers may not foresee: People will retain much more data as there will be little incentive and less time to make it go away. “Cheaper to keep her” will be how most of us deal with data.  Location data will be routinely tracked by many devices with GPS functionality on and about our person, so this will become a new and useful evidence stream.  Virtual machines will be used as forms of production.  Local storage will give way to cloud storage.  Hey, I could do this one all day!

4) You have an extensive background in both e-discovery and computer forensics. Do you see a convergence, or will they remain largely separate worlds from a process and technology perspective?

I see convergence already.  “Forensically sound” practices are creeping into EDD harvest and traditionally rigid approaches to disk forensics are being challenged by the practical realities of immense volume and mission-critical operations.   We see the growth of “live” forensics, hash values displacing Bates numbers and operating systems allowing more and more deleted information to be easily resurrected.

The tools and techniques of each discipline are also converging.  But there will remain a distinction between the two flowing from the unique ability of a skilled forensics examiner to distill the bits and bytes into a compelling tale of human strength or frailty.  It’s painfully easy to misread the significance of digital footprints.  There’s a component of science and art to computer forensics that will insure its distinction and growth.

We face convergent challenges, too.  In both forensics and EDD, the lure of lucre pulls in people who really ought to be doing something less harmful.  Lives, liberty, fortunes, and careers hinge on some computer forensic examinations; yet, some schools and tool sellers promote the notion that you can learn what you need to know over a long weekend.  Just as many copy shops decided they were e-discovery experts one dark night, a lot of poorly trained, incurious and careless forensic examiners are popping up all over.  I’m frankly appalled by some of what I see out there.   Where I hope we ultimately converge is a high standard of professionalism and proven expertise.

5) Finally, the question on the mind of every loyal “Ball in Your Court” reader: Which court is it — basketball, tennis, or volleyball?

I’ve never been much for team sports, but if I have to choose, I opt for the one played on the beach by fit, bikini-clad women.  I may be a hopeless nerd, but I’m not stupid.

In his latest article, Craig Ball argues that lawyers “need to learn more about the science of search.” Craig says that at least part of the reason for this is that searching in e-discovery is challenging and different from the searching to which lawyers are accustomed.

“Lawyers believe themselves adept at keyword search in e-discovery because they’ve mastered keyword search in online legal research. The correlation is superficial at best. Unlike the crazy quilt of ESI, the language of reported cases is precise, consistent and structured. Misspellings are rare. Legal research is Disneyland. E-discovery is Baghdad.”

I had a conversation on a similar litigation discovery topic with Ron Friedman last month after my last post where he made a similar argument about lawyers needing to learn e-discovery search tools.¹

I think Craig and Ron make excellent points. E-Discovery using litigation support software search is different and it’s important for lawyers, investigators, litigation support professionals and other practitioners to understand how. The natural questions that arise from their arguments are: what is different about e-discovery search? How is it different from other familiar searches, such web search and legal research search? The answers are important because it can help guide e-discovery experts on how to train lawyers and even guide attorneys during litigation discovery review. It is also important for developing e-discovery best practices and e-discovery search software.

I think the first step in answering these questions is to agree on the definition of e-discovery search, or better said the types of e-discovery search since there are several. To address this appropriately would take a least another full litigation discovery post or a paper. As a result, I will leave the detailed discussion of these matters to another time, but for this discussion I will focus on searches used to identify potentially relevant documents for purposes of matter assessment (i.e., understanding the nature of the case: who did what, where, when and why) and for document production to the opposing party.

I have observed five major characteristics of e-discovery search that as a whole differentiate it from other searches. I would be interested to hear additional views on what is different about e-discovery search, so please comment on this post.

Recall
First, the cost of missing a relevant document, or low recall, can be very high in e-discovery. Missing a document that you should have produced could result in sanctions and adversely impact the case outcome. Missing key documents could also affect your legal strategy causing you to make sub-optimal decisions. Missing relevant documents can be costly in other searches as well. For example, in legal research, not identifying case law that is critical to your case could also have a detrimental impact on your legal strategy. However, low recall is on average costlier and more likely in e-discovery. In contrast to e-discovery and legal searchers, web search users are typically not very concerned with missing relevant documents. For the most part, they are interested in the most relevant documents, not all of the relevant documents. This is why Google rarely actually provides all the results for a search (you can try this yourself by paging to the end).

Precision
Second, the cost of returning false positives, otherwise known as low precision, in e-discovery searches is high. The results of e-discovery searches including false positives are typically produced and reviewed by humans at costs as high as several dollars per document. On the other hand, false positives have a minimal cost in web search because users either won’t see them if they are ranked low or will ignore them after minimal review. False positives can be costly during legal research in certain scenarios, such as when the stakes and nature of case are such that many search results need to be exhaustively reviewed, but typically the costs are lower.

Varied Language
Third, documents searched using litigation support software during e-discovery often include personal emails and files and frequently use varied language including jargon, slang, abbreviations, technical terminology, misspellings, and machine-created junk. This is Craig’s “Baghdad” point. In contrast, as Craig points out, documents searched during legal research, such as opinions, motions, etc. are typically well-structured documents with no misspellings, relatively consistent language etc. Even web sites are generally “cleaner” than typical e-discovery documents.

Complexity
Fourth, users are often looking for different information when performing searches during discovery. E-Discovery searches are often aimed at comprehensively understanding “who did what, when, where and why” in a matter where the people involved may be trying to hide this information and where there may be no single “starting point”. As a result, e-discovery searchers often adopt strategies that involve large numbers of queries, and will follow the evidence and iteratively refine their searches for combinations of topics, people, places, etc. Legal searches can also be fairly complex, but as with other differences this is one of degree. These searches typically don’t involve hundreds of queries and terms, are often more narrowly defined and have a “starting point”. Web searches tend to be even simpler. Most are one or two words.

Transparency
Finally, e-discovery search is part of a legal process. The searches themselves are subject to negotiation with and review by opposing counsel and the court. This process can also take place over long time frames. As such, there is a great need for transparency in the development and execution of e-discovery searches. It is also important for e-discovery searchers to develop a defensible audit trail to prove what searches were run and what results were produced when. This is not the case in web or legal research.

These differences have a number of implications for e-discovery search best practices, training, software and more. I will discuss these in more detail in future posts. However, I think these differences make clear why Craig and Ron are right to suggest that people who are new to e-discovery can benefit from specialized training and tools. Similarly for those of us who are deeply involved in e-discovery, I believe these differences point to the fact that there is still a lot of work to be done in developing best practices and software to make it easier for lawyers and other users to perform e-discovery searches effectively.

¹ Ron also wrote another interesting post on this topic which can be found at PrismLegal.com.

Craig Ball’s visibility and prominence in the e-discovery space is akin to Brangelina’s in the world of pop culture. So, chances are that those of you who track the space closely have already read his recent post on XML and its still-unproven potential in e-discovery.

Craig does a fantastic job of summarizing why XML has huge potential to ease the exchange of e-discovery content — as well as why significant challenges still lie ahead before we can all leave our custom load files formats, conversion tools, and scripts behind and head to the beach.

Why are standards efforts in general, and the e-discovery effort in particular, so complex? There are two reasons: one is about people and process, and other is about technology. To borrow a page from Google, and quote the person (Joe Kraus) leading Open Social, a standards effort in the social networking world: “If you want to go fast, go alone; if you want to go far, go together.”

How true. Those involved with the EDRM XML effort are well aware that it took two full years of hard work and many, many iterations just to get to the 1.0 version of the specification, which, as all involved would readily acknowledge, primarily just addresses the biggest pain point that customers and providers face today: load file interchange. Ironically, some in the blogosphere have accused the EDRM effort of not being connected enough with larger international standards bodies. The truth, as usual, is far more complex and nuanced. Not much was happening on the wider standards front, and after repeated attempts to help jump-start those efforts, George Socha, Tom Gelbmann and a host of EDRM participants decided it was time to move the ball forward on their own – and were remarkably successful in that effort, achieving compliance across most of the major players in the industry. Now, with the wind at their backs, the EDRM group is planning the next iteration of the spec and will certainly be reaching out to other interested standards bodies as a part of that effort.

On the technology front, the bottom line is that there’s still a long way to go to figure out how to incorporate actual document content into the EDRM XML schema. There are also a lot of interesting open questions around areas such as interoperability that the XML group plans to take up at the big annual EDRM meeting in St. Paul in May.

In the most general sense, XML’s a done deal: The world is moving toward one in which all content is digitally encoded and marked up with metadata. It’s inevitable. However, in the e-discovery specific sense, our industry is just getting started, and it’s going to take unified, concerted effort across the spectrum of e-discovery providers and end-users to make Craig love XML.