Interview on my “Movie” with Jason Baron, Specialization in e-Discovery, and a Host of Other Vaguely Related Topics

I was interviewed recently on ESI Bytes about the upcoming world première at Legal Tech NY on February 3, 2010, of my so-called movie with Jason R. Baron. The six-minute video (we just call it a movie as a joke) is called “e-Discovery: Did You Know?” Karl Schieneman had seen a sneak preview of an earlier draft of the video and wanted to learn more about it. He also asked me questions about e-discovery specialization and the like. What follows is the slightly edited version of the first part of the telephone interview. You can listen to the original audio podcast on Karl’s web, but then you won’t get the graphics and will have to wade through a bunch of “you knows” and other minor imperfections that I edited out. Still, I left a few to kind of keep it real (plus I got tired of editing). Next week I’ll post Part Two of this interview, where Karl and I discuss an even more bizarre assortment of e-discovery related issues.

SCHIENEMAN: At a recent Georgetown University Advanced e‑Discovery Conference back in November, Ralph and Jason Baron brought down the house with a short film clip pointing out how scary the data volumes are growing and how we need to approach ESI dealing with an escalating problem or it’s going to be a train wreck. It was sort of like the 2001 Space Odyssey experience by Stanley Kubrick without the hallucinogenic drugs. It was very well produced and very thought-provoking.

But first, before we talk about your film clip, tell me a little bit about your new book, Electronic Discovery. What sort of theme is in that?

LOSEY: Well, I guess you could say it is more of the same, but I think it’s even newer and better. I hope my ability to write is somewhat improving with experience. This will be my third book now and I’m very excited because this one is with a new publisher, West Thomson Reuters. I’m looking at the draft cover now and it will be very snazzy. It’s going to be called Electronic Discovery – New Ideas, Case Law, Trends and Practices. If you are a reader of my blog, most of this is going to look very familiar because, like the first two books, this is a “blook.”  This  means it is a paper book derived from the electronic blogs. It’s sort of my thing to do that work with an editor and get it in a paper form, where it’s organized by subject and placed together. So if you have read the blog and like it, this will give you a chance to peruse it with the ease of paper and by subject. It is also something you can recommend to those of your colleagues and friends that are “paper only people” because there’s a lot of information here on how to transcend that kind of limitation and get into the purely digital world.

SCHIENEMAN: Boy, I would – we’ve done about 60 podcasts this year, and I can’t even imagine turning this into a book, but I commend you for your efforts. It’s an excellent blog. I enjoy reading the blog online. And Ralph, how is your film clip faring? Any notice from Cannes or the Sun Dance Film Festival this year?

LOSEY: I feel like I’m on the Tonight Show or something, plugging my new book and movie. We call it a “movie,” but that’s a joke. It’s a six-minute video clip. It follows the style of a well-known series of videos on You Tube called Did You Know? This was pioneered by educators who came up with this format – this fast-moving format of throwing mind-boggling facts at people – did you know this, did you know that. What Jason Baron and I did was prepare an e‑discovery version of this film genre, if you will, and of course, I’m joking – but of this type of You Tube video, the Did You Know style, where we throw a lot of facts about electronic records and what’s going on in electronic discovery, and in the courts, and things like that. Those of you who spend a lot of time in electronic discovery, I’m sure will be familiar with a lot of the facts, if not most of them. But I think that Jason and I have dug up a few new ones you may not have heard before and, in any event, the people that have seen it so far seem to be entertained and amused by the experience.

SCHIENEMAN: Is it ever – is it going to be on line? You going to You Tube it or …

LOSEY: Yes, it is. That is our eventual plan. I will tell you Jason found some terrific trance music to go with it. He did the audio, finding the music, and of course, I did my Keynote movie magic, if you will, by making all of the visual images. Jason and I worked together to come up with the facts, since both of us love to research, which means we really have no life to speak of outside of e‑discovery. But aside from that, we did come up with some interesting information and we put it together in a movie package, which, after we premier it at Legal Tech NY, we’re going to add a nice little disclaimer, and then we’re going to throw it up on You Tube for the world to see. Hopefully it’ll be helpful to people if they want to start off a CLE on e‑discovery or anything like that to play this, to get everybody into the mood of sitting down and listening. It kind of puts listeners into a trance, as you said , and overwhelms them with facts so maybe they’ll be more inclined to listen. It addresses the fundamental question of why  e‑discovery is a problem. At least one of the reasons is that there’s too much information and it’s so complicated, and this video kind of lays that out for you.

SCHIENEMAN: Maybe after Legal Tech, we’ll do a quick show on the movie, so that we can link to it and help you get the word out on the video because I think it’s a neat clip.

But let’s talk about specialization in electronic discovery. We talked about this last summer, Ralph, when I pointed out I was doing some podcasts with employment lawyers, bankruptcy lawyers, family lawyers, anti‑trust lawyers, IP lawyers, and some others specifically on subject matter shows aimed at general practitioners who work in this field and how e‑discovery impacts them. And we talked about this issue of specialization, about whether generalists tackling e‑discovery is a good idea, bad idea or it depends. And although all lawyers know to take the it depends answer when offered, it’s usually the way to go. Would you like to give your opinion on the area?

LOSEY: You know I would! I’m never shy on giving an opinion. By the way, let me just state something for the record. These are always just my personal opinions. Old Man Akerman, he has passed away, and his great firm of which I am a part, have nothing to do with this. This is just me and my personal views, not the views of my firm, not the views of any clients, just my personal, unrehearsed views. It is certainly not legal advice and you would be extremely foolish to rely upon it as legal advice. So that’s my disclaimer.

I just want to remind everybody about that because I am a practicing attorney and this is what I do for a living. And what I do is complicated. I didn’t realize how complicated e‑discovery was until about four years ago– because I’ve been doing e‑discovery since…., well, the 80s, before there was a term e‑discovery. I mean, when we had computers and would sometimes look for files in them. Short background: I was the first lawyer in Orlando to have a computer on his desk as a young guy, as soon as the PCs first came out, and even before that I had a TI 994A computer at home. So I was, you know, always used to having computers, and back in the late ’80s, sometimes we started seeing computer files from clients. And I’d look at it. I’d take Norton Utilities it was called, and look at the stuff right on the hard drive, including deleted stuff and slack space. I didn’t know that was called computer forensics, but it’s just what people did that looked at information on computers. So I had a lot of experience and, you know, ran my small firm’s “IT” we called it, ran the computers for the 10, 15 person firm we had for years and years.

I saw it all from a hands-on user perspective, and I thought I knew, and, you know, did know about computers. So I thought I knew about e‑discovery too, not only from that kind of general experience over the years, but also, I was lucky in that in the late ’90s, my law firm got to handle the defense of one of the largest Qui Tam cases – that’s one of those government fraud cases – in Florida, and certainly the biggest one in Central Florida. It had a huge electronic discovery component to it with over 300 different offices interconnecting and a huge IT department. So I spent, you know, a thousand hours or more just on electronic discovery in that one case in the late ’90s.

Based on all of that, I thought I knew electronic discovery, right? It seemed reasonable. But back then I would do electronic discovery, and then I would do just regular commercial litigation, and then I’d move on, and I’d do another subject that judges and generalists hate, and that is ERISA litigation. I’d do all kinds of other things. And e‑discovery was just one of many doors in my life, one of many hats that I would wear. Even though I would not really call myself a generalist in litigation four years ago, but I had, like most litigators in Florida my age, done pretty much everything in the civil litigation, commercial litigation area. You name it, I have done it. I don’t really do transactional work, though, so in that sense I’m not a general lawyer.

Anyway, when the new rules looked like they were coming out in 2006, I decided – for a lot of reasons, personal and public – that I was just going to focus and limit my practice to this new area of electronic discovery and drop all of the other stuff. I had some really good trained lawyers that I’d worked with over the years, that I turned my other practice over to, and my law firm thought this was a great idea to do this. So, the bottom line is that for the last 3½ years I have only done e‑discovery. The moral of this story is that I have learned in the last 3½ years how little I really knew about e‑discovery before when I was a generalist, and a pretty damn well qualified generalist at that, if I do say so myself. I had unusual qualifications. I had paid my dues with computers. I had spent, you know, put in a couple thousand hours on it. But still, as it turns out, in the last 3½ years of just doing e‑discovery, I have learned that a lot of what I thought was the right way to handle things was not. It was wrong. I have learned that there is much more depth to it, and that e‑discovery itself is not a little subject. It is a specialty, but it is in itself, very large and encompasses things that I didn’t realize before. So it’s been an awakening for me going from a general commercial litigator who would sometimes do e‑discovery, to just a specialist who only does e‑discovery. It’s been eye-opening to me, just how difficult and how much more there is the deeper you go into it.

SCHIENEMAN: I can echo that. I mean I’ve done about 60 of these podcasts and I tell people when I go out on the search and retrieval area, that, you know, I do the podcast to help with issue spotting, but it makes me aware that there’s a lot out there. It really does. It’s impossible to be a specialist across the entire field. It’s a good point.

LOSEY: Yeah, it is. And of course, my partners or other lawyers I meet don’t get it because they think e‑discovery itself is a narrow, small little specialty. And when I say, “Oh, geez, I wouldn’t do that kind of e-discovery forensic work. I would bring in another specialist on that”, you know, they don’t quite get it, that a small specialty in turn has specialties. There’s a huge knowledge gap between folks like us, that just do e-discovery, and attorneys that have either never done it or have just dabbled in it.

This is the great challenge to people that care about the profession and where we’re going, is to share this information and, you know, bring up the whole harbor, if you will, raise the whole sea. The whole level of understanding has to be raised for everyone in order for our profession to survive this technological onslaught, this rapid change that we’ve all being subjected to, if you will. We’ve got to share the knowledge. We cannot afford as a profession to only have e‑discovery specialists know anything about e‑discovery. That’s something I feel strongly about, is that it needs to be shared as much as possible.

Go to the exciting conclusion of this interview in the next blog where Karl and I will talk about such things as French as a metaphor, Who’s On First, Zen and the Art of e-Discovery Specialization, and Malcolm Gladwell.