Kroll’s Annual Report: Same-Old, Same-Old. So What Are We Going To Do About It?

Every year Kroll prepares a year-end retrospective of trends in e-discovery law. It is based on their analysis of case-law and experience as a major vendor in the field. Every year the report basically says the same thing. Corporations and their attorneys continue to fail in all aspects of e-discovery and the judges are getting sick of it, imposing more and more sanctions. It is deja vu all over again. Only the case names seem to change, as new corporations and different law firms take turns at being embarrassed by e-discovery blunders. The name of this year’s report says it all: Year in Review: Kroll Ontrack 2010 Discovery Trend Data Reveals Organizations Struggle with Preservation, Production and General Discovery Protocols. Who is to blame? What are we doing wrong? Are we doomed to repeat the same mistakes over and over like Bill Murray in the movie Groundhog Day? How do we break this cycle?

Although only a few law firms and companies get hit each year with major, public e-discovery blunders, the truth is, we are all struggling. I could at this point launch into an attack of the legal profession and the failures of lawyers to change and keep up. But I am not going to go there. I do not think we are any less skilled that the generations of lawyers that went before us. After over thirty years of practice I have a pretty good idea of how good, or not, the lawyers of the past were compared to the current crop. We are just as good, probably better. No. I do not blame attorneys. And, unlike many attorneys in private practice, I don’t blame judges either. The judges are just doing their job, and when evidence goes south, they have to do something. If I were them, I’d complain too. No, the blame lies elsewhere.

The Kroll Report – 2010 Incarnation

Before I reveal who the real villains are here, I’d like to share more about this year’s Kroll report. Let’s start with their own one sentence summary:

Among the dominant topics reoccurring in the 2010 judicial opinions were the pervasive struggle companies and practitioners continue to have with proper preservation techniques, the continued growth in intolerance by the judiciary for discovery failures and the renewed call for cooperation amongst counsel.

Lawyers and their clients keep losing ESI. The pesky computer files keep disappearing, and when opposing counsel and the courts look into it, they find “proper preservation techniques” were not used. Nothing new here. Could it be proper preservation techniques are hard skills to learn? These topics, much less skills, are never even mentioned in most law schools. These skills are not present within the collective memory and knowledge base of most law firms and corporations, even the biggest and best. As for the “continued growth in intolerance by the judiciary,” the Judges want trials, they want settlements on the merits, not witch hunts for evidence-loss and blame-game sanctions motions. These motions consume huge chunks of their time.

Of course Judges blame the practitioners who appear before them. But I think they should look deeper. Why are attorneys so incompetent in this one area of legal practice? Is this really even legal practice at all? Locking down computer files and learning about super-complex IT systems? The judge’s irritation is understandable, but they vent on the wrong people. The lawyers are not to blame for all of these mistakes.

As to the “renewed call for cooperation amongst counsel,” well maybe we are somewhat to blame for that one. But hey, this is fairly new and a complete change in discovery culture takes time. We are working on it. The last generation of lawyers left us a heritage of hard ball testosterone and these kind of attitude changes take time. But here I see progress being made every day. It is getting better, and will continue when more lawyers get a clue as to how to handle e-discovery. It is much easier to cooperate when you know what you are doing, when you know what is important and what is not.

So what else does the Kroll report say? It summarizes 84 opinions on e-discovery in 2010 and identifies the following issues:

• 39 percent of cases addressed sanctions
  • 49 percent of sanctions involved preservation and spoliation issues
  • 27 percent of sanctions involved production disputes
  • 24 percent of sanctions involved withholding discovery and other abuses
• 18 percent of cases addressed various production considerations
• 17 percent of cases addressed various procedural issues (such as searching protocol and cooperation)
• 11 percent of cases addressed privilege considerations and waivers
• 8 percent of cases addressed computer forensics protocols and experts
• 2 percent of cases addressed cost considerations
• 2 percent of cases addressed preservation and spoliation issues (but not sanctions)
• 2 percent of cases addressed discoverability and admissibility issues

It goes on to say, as it does every year, that:

Almost every case that discussed preservation and spoliation issues also included a conversation regarding sanctions. This is not surprising given that 24 percent of respondents to the Fourth Annual ESI Trends Report published by Kroll Ontrack ranked preservation and collection difficulties as their number one concern.

That ESI Trends report, which was published in October 2010, is summarized by Kroll with the following familiar refrains:

Seventy-seven percent of companies are not confident in the repeatability and defensibility of their Electronically Stored Information (ESI) Strategy, attributable to the fact that more than half (56 percent) of companies do not have or do not know if their organization has a data map or inventory of where all their data is stored, only one-third (38 percent) have tested their policies, and nearly half (45 percent) do not know if their policies have been tested. Companies are creating policies, but are not taking the important next step of making sure all the necessary protocols have been followed and testing and modifying policies as needed.

This tells you that lawyers are not the only ones falling behind here. The companies they represent, management and in-house legal counsel alike, are also failing. But I do not blame them either. No, the culprit lies elsewhere. The companies are trying, most of them any way, they just don’t know what to do or how to do it.

Who Is To Blame?

We lawyers are trained to find out who is at fault and point fingers. It may not always be a productive exercise, but it is what we are good at. So forgive me if I look for a scapegoat to explain why year after year the Kroll Report comes up with the same conclusions: questionable competence by litigants and their lawyers in all things e-discovery. I have already explained that I don’t think it is our fault, that is, we lawyers are not to blame – well, most of us any way, some of us are just slackers. But most of us are trying our best. We are required to go to CLEs to keep our license. We fill the near endless stream of CLE events on e-discovery. Often we even turn off our cell-phones and sit in the front. But it is hard, nay impossible, to learn enough from such events, even the ones that last all day, much less an hour. Besides, many of them are boring. Many events just rub in how incompetent you are and how much there is to learn. The only real solutions offered are to retain the presenters. In fairness to the presenters, what else can you do in a hour, much less in your 15-minute segment of a five person panel. Sounds bites just entice. They do not really teach anything.

I also cannot blame the judges for bad rulings, inconsistent rulings, or impatience, or expecting too much. After all, how do you do justice if key facts may have been lost due to shoddy holds? Yes, I know, all judges are far from perfect and most went on the bench without ever having to deal with e-discovery problems. For most, all they know about e-discovery is theory. All they know is what the lawyers tell them. When the blind lead the blind, some stumbling is inevitable. Why blame the blind? Which gets back to my point, do not blame the lawyers and lawyers wearing the black robes.

Blame the men and women wearing the white coats. Blame the scientists and engineers. They are the ones who have blinded us with science. They have unleashed an avalanche of new technologies. They are the ones who have transformed the world too far, too fast. It is not our fault, it is theirs.

The law is supposed to be slow to change. We are supposed to be a bastion of stability, not a fountainhead of creative change. But we are also supposed to be masters of documents, of writings, in order to find the truth and render justice. The inventors, especially the computer scientists, have released a genie that has changed everything, especially communications and writings. There are now thousands of different kinds of writings, even including a few paper letters, but mostly emails, word docs, powerpoints, spreadsheets, twitters, Facebook posts, text messages, instant messages, whatever. The list grows everyday. Every new software creates a new kind of writing, a new medium for the storage of information. Only teenagers seem to have the time to keep up with the latest and greatest new forms of communications. Not only that, there are trillions of places to store this information. Google alone indexes and searches over a trillion websites. Even if you find where it is stored, it will still be hidden in plain sight because it will be surrounded by millions of other bits of irrelevant ESI.

We lawyers and our clients are drowning in a flood of information. We now have far more electronic writings, far more ESI, than the number of words ever spoken by all of Mankind since the dawn of time to the present. When you have a billion emails to try to safeguard, it is all too easy for a few to slip away. Some might be important. When your information storage systems are so complex that not even the director of IT understands them all, it is easy for lawyers to mess up. When things get this unbelievably complicated, and the volumes get so high, mistakes happen. It today’s tech-crazed world is it unfairly hard to preserve, find, and produce the facts frozen in writings of all kinds, the truth of what happened, of what people intended. Justice is far more difficult to attain than before. The profession is severely challenged. Damn you science guy, its your fault!

Yes, I say we blame it all on technology and the information explosion it triggered. Blame the scientists and engineers, not the lawyers and judges trying to cope with a world that’s changing too fast. Scientists and engineers have recklessly built every new idea that pops into their head, often just because they can. There was no thought of consequences. No risk analysis of what this might do to the justice system. They figured out how fission works, so they built a bomb. We now live under threat of total nuclear annihilation. Science is reckless. They just open Pandora’s box and let the chips fall where they may.

Yet, these chips are incredible, they store billions of emails in a grain of sand. As a result of this thoughtless progress, and constant change, the legal profession suffers, the ability of our citizens to obtain justice suffers. We all suffer, but no one seriously want to turn the clock back either. We like our new toys. We like our chips. We don’t want to live in the drab old Twentieth Century. At least scientists now share the computers and give us good things too. Who else is there to blame?

I can think of another group that is to blame here: the Universities and their anachronistic law schools. An ivory tower filled with paper lawyers, the pretentious super-smart who pretend like e-discovery is just a passing fad. They perpetuate a school system that prepares law students to practice law in the Nineteenth Century. The legal education system has failed us. The law schools should teach the next generation how to swim in the information flood. They do not. They do not ever try. Our education systems are failing.

Kroll seems to agree with me on this. The article by their own Regina A. Jytyla, The Need for the Legal Department to Get Schooled on Technology, 10 DDEE 21, 11/25/2010, which is directed to in-house counsel, begins with the following observations:

Results of a recent survey of corporate counsel and IT in the United States reveal that corporate lawyers remain alarmingly ill-informed about steps necessary to protect organizations from rapidly escalating risk and cost in preparing for and responding to requests for electronically stored information (ESI). …

Despite a rapidly developing body of case-law, procedural rules, and ramped-up enforcement of industry regulations, why are corporate lawyers seemingly behind the eight ball when it comes to issues involving the discovery of ESI? …

Another more likely theory postulates that a lack of effective education on how technology can help corporations defensively and cost-effectively plan for and respond to discovery requests accounts for the disparity in knowledge between legal and IT professionals.

The situation is clear. There is a lack of effective education. Law schools should teach technology and the many aspects of electronic discovery, but with just a few exceptions, they do not. They should recruit more science and engineering majors, but they do not. They should offer interdisciplinary technology and law programs, but they do not. As a result, most of our law schools grads are just as blinded by science as we are. The primary difference is their comfort level with the rapid pace of change. They see the poetry in the motion. They may not understand modern corporate IT structure, or know how to implement a proper hold with more than two players, but they see the sweet deep harmony of technology. They have a better chance than the prior generations to surf the tidal wave of information. The spheres in commotion is all they have ever known.

I am reminded of the lyrics to Thomas Dolby’s iconic song, Blinded With Science:

It’s poetry in motion
And when she turned her eyes to me
As deep as any ocean
As sweet as any harmony
She blinded me with science
And failed me in geometry

When she’s dancing next to me
(Blinding me with science)
(Science)
Science
I can hear machinery
(Blinding me with science)
(Science)
Science

It’s poetry in motion
And now she’s making love to me
The spheres are in commotion
The elements in harmony
She blinded me with science
She blinded me with science
And hit me with technology

When I’m dancing close to her
Science
I can smell the chemicals
(Blinding me with science)
(Science)
Science

It’s poetry in motion
And now she’s making love to me
The spheres are in commotion
The elements in harmony
She blinded me with science
She blinded me with science
And hit me with technology

Good heavens, Miss Sakamoto
You’re beautiful

I, I don’t believe it
There she goes again
She’s tidied up and I can’t find anything
All my tubes and wires
And careful notes
And antiquated notions
But, it’s poetry in motion
And when she turned her eyes to me
As deep as any ocean
As sweet as any harmony
Mmm, but she blinded me with science
She blinded me with science
She blinded me with

__________

Conclusion

Although we should focus on the next generations, we should not give up on those in power, the lawyers over forty with antiquated notions. They are, after all, the ones that run most litigation shows. We should keep trying to teach them to surf too, both the Net and the communications flood. But we should focus on the coming generations. We should offer them deep, intensive training; law school level, challenging training worthy of their intellectual skills and intelligence. It should be a program of fifty to a hundred hours or more, not just an afternoon CLE. That is the only way for meaningful training to happen.

I am going to do something about it, soon. I grow tired of waiting on law schools. They are too slow. Anyway, the reality is, the real training of a lawyer begins after law school, when they enter private practice and learn from the partners and senior associates. It has been that way for decades. Law professors know this perfectly well, which is why most do not even bother to pretend to be practical. They teach students to think, to learn. The prepare them for their real education in private practice. The trouble is, only a handful of law firms have the institutional knowledge and capacity to teach their new associates e-discovery.

I am ready to do something, to move from talk to action. The blog this week is a kind of herald of coming good. I have been working for over four years on this. It is all set  to go. Next week I’ll lay out the full story, and open up for real, but for now, it’s just a teaser. I want to use the next week or so to enlist other educators and skilled professionals to join in the project with me. If you are a reader of this blog, you are a potential contributor. After four years of work, I could do this alone, but the ideal solution as I conceive it, is both creative and collaborative. I am ready to start the adventure, but I tarry a tad longer to invite other e-discovery educators to begin the journey with me.

The revolution of Wikinomics is here, and by that I am referring to the movement to mass collaboration over the Internet, not the software. The claims in the book Wikinomics: How Mass Collaborations Changes Everything may be a bit overstated, but the facts are impressive, and the new power of Internet driven mass collaborations are undeniable. The many can do more than the one, so long as there is leadership and quality control. Look at what Wikipedia has done for reference, what WikiLeaks has done to world diplomacy? It may be that a camel is a horse designed by a committee, but, on the other hand, consider the excellent collaborative writings of The Sedona Conference. It is a matter of critical mass, vision, the right people, and quality controls. There is no doubt that when the numbers are big enough, and the project is free, open, interesting, and creative enough to entice the top talent, that mass collaborations can work wonders. They can take a project far beyond what any one person could do on their own.

All e-discovery vendors, and non-profit groups too, are invited to contact me now, today, this week, this weekend (I work 24/7), to learn more about the project and how you can collaborate. There is still room, and, although the invitation will remain open for years, there is an advantage to being first. I will make a contribution of my own work, to be sure, but I want others to join in too. This is not a pitch or money thing for me. It’s a game changer. You might be able to get in on it.

If you have information, products, services, or special skills that might help remove the blinders of science from the eyes of lady justice, that might help the profession to meet the challenges of e-discovery, and you have the capacity to put together a high quality teaching program to transmit this knowledge, this wisdom, then contact me at Ralph.Losey@gmail.com. I’ll spell out the details of what I plan to do and how you can contribute. Together we can help make next year’s Kroll Report different. We can break out of the deja vu cycle of mistakes. We can get it right. The Punxsutawney Phil groundhog will wake up to a brand new day.

Be a part of the solution. Email me and get a sneak preview of what comes next, the cyber law school of tomorrow, open to all, wiki-powered, and virtually free. Stay tuned. Stay sighted. Smell the chemicals and dig the poetry in motion.