To my dear friends in the e-Discovery team community who prefer my videos and graphics to my many worrrrds, this blog’s for you.
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Don’t be a pseudo-cooperator. Make reasonable disclosures.
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All characters appearing in this work are fictitious.
Any resemblance to real persons, living or dead, is purely coincidental.
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Lawyers Duties, New Rules, Review, Search, Technology | 
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Posted by Ralph Losey
The Deepwater Horizon oil spill case is scheduled for non-jury trial in New Orleans on February 27, 2012. In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, (E.D.La., MDL No. 2179). This mammoth case is a consolidation of 300 law suits involving 120,000 people and businesses. Click here to see the full docket on Justia. The biggest case in the country proves, once again, that email is powerful evidence. You may recall news concerning email and the world’s largest oil spill back in 2010 when Congress publicized an email from a BP drilling engineer, Brian Morel. It warned that the Deepwater Horizon oil rig was a “nightmare well” that had caused the company problems in the past. Of course, there were more emails like this, but they did not all get into evidence as this blog will explain.
Here is how the presiding Judge Carl Barbier describes the In re: Oil Spill by the Oil Rig “Deepwater Horizon” case in a recent Order:
This Multi-district Litigation (“MDL”) arises from the April 20, 2010 explosion and fire on the DEEPWATER HORIZON mobile offshore drilling unit (“MODU”), and the subsequent discharge of millions of gallons of oil into the Gulf of Mexico. The consolidated cases include claims for the death of eleven individuals, numerous claims for personal injury, and various claims for environmental and economic damages.
Order dated January 26, 2010, Granting in Part and Denying in Part Transocean’s and BP’s Cross-Motions for Partial Summary Judgment Regarding Contractual Indemnity
The purpose of the upcoming trail is to assign and apportion blame among the many defendants sued in these cases. The main corporate defendants include BP, rig owner Transocean, and Halliburton, which provided cementing services. As a side note, BP recently accused Halliburton of spoliation by intentional destruction of computer records and has, of course, moved for sanctions. Anadarko Petroleum, one of BP’s partners in the well, is also involved in the upcoming trial. Plaintiffs include individuals and businesses, represented by a plaintiffs’ steering committee, as well as many states and the U.S. government.
Smoking Gun Emails
Emails will certainly be part of the 7±2 documents that the trial lawyers of all parties will build their arguments around. See: Secrets of Search, Part III. In addition to the “nightmare well” email that will be the centerpiece of every attorney’s opening statement, except for BP, many other emails were found that will be featured as evidence. Three smoking gun type emails were subject to a motion in limine to try to have them excluded.
One of the emails subject to the motion to exclude was a pre-accident 2009 email where an Anadarko employee expressed disappointment about BP. He complained that BP had not disclosed some information related to tropical storm damage caused to a different Transocean rig. Another Anadarko employee responded with an email saying: “Bummer. I’m amazed that they did not tell us about this.” Bummer and amazing make great touch stones for attorney arguments about cover-up and fault. This is just the kind of email you need to build a persuasive pitch to pass all blame to BP. Mix in the nightmare well, and you have a real bummer for BP’s attempt to share the blame with other defendants.
But wait, there’s more. They also found a June 2010 email from a Halliburton employee, Ryan Haire, which questioned the company’s reported findings regarding some tests on the well.
But wait, there’s still more. They also found an February 2010 email from a BP geologist to a friend referring to the Deepwater Horizon rig and saying: “thanks for the shitty cement job.” Oh, this is a particularly good one for lawyers because of the colorful language.
These emails could be used to argue cover-up and negligence, despite what the witnesses later say under oath. Trial lawyers could now say it was a shitty nightmare well that BP knew was an amazing bummer. Powerful stuff, especially with a jury who might later hear damage claims. BP knew that it had to try to keep out these three emails, so they made an all-out effort with a motion in limine (one of dozens).
Just because you discover email, and it’s hot, and would be part of anyone’s 7±2, does not mean that the email will actually be considered. Never forget that the whole purpose of e-discovery is not just to find evidence, it is to get it admitted at trial. If it does not get into the record, it cannot be part of the 7±2 based argument. All three of the emails quoted above have been excluded from evidence by a February 8, 2012, Order of U.S. Magistrate Judge Sally Shushan.
Judge Shushan excluded the first two emails on the basis of hearsay. The author of one of the emails, Ryan Hair, testified that he really had no first hand knowledge of the test findings that his email criticized. It was just what someone else had told him. Hearsay objection sustained.
As to “thanks for the shitty cement job” email, it was excluded on even more interesting grounds. According to news reports, Halliburton argued that the email was no more than a casual, tasteless joke made by one friend to another. Judge Shushan agreed. She concluded that there was no showing that the email was a “business record” of the cement work that could be used as a basis to introduce the email into evidence. Judge Shusan explained:
It must be demonstrated that the e-mail at issue was not sent or received casually, nor was its creation a mere isolated incident.
Hmm. You have to prove that the email was not casual? I guess this shows the “just kidding” objection sometimes works and can be used in a last-ditch attempt to exclude email. Usually that kind of “didn’t really mean it” argument does not work. The email will be allowed into evidence, but you can provide other testimony that it was just a joke, and let the trier of fact determine the truth. The problem is, most juries lack a sense of humor, especially when people are killed and the lives and business of thousands of people are ruined. So I can see why BP did not want to go that route.
Defense counsel here must have made a very compelling argument, probably concerning unfair prejudice. I suspect their argument also relied upon contextual email and other emails between these friends showing that is how these boys actually talked to each other. Real jokers, and tasteless ones at that, as BP smartly admitted.
Yes, it is amazing what people say in electronic communications like email, not to mention text messages, private Facebook posts, and the like. Email remains king, as the Deepwater case shows, but so to do evidentiary objections. Also see LTN article on Google’s recent attempts to exclude emails on the basis of privilege in its billion dollar patent suit against Oracle. Here is the Sixth Circuit Court of Appeals Order denying Google’s Petition for Writ of Mandamus.
Lorraine v. Markel
Everybody should know Judge Paul Grimm’s Lorraine opinion, and should study it again before they go to trial. Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.Md. 2007). It is the best treatise on rules of evidence governing ESI. Who knows, you just might be able to devise an argument to keep an email out of evidence that would otherwise sink your ship.
Consider Judge’s Grimm’s summary at page nine of the one-hundred-and-one page decision in Lorraine of the kind of evidentiary issues that you should consider:
Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.
Conclusion
Email and other electronic evidence, including video, are powerful forces in court rooms today. But just because you discovered relevant ESI, does not mean you will be able to use it or show it to the jury. It might, for instance, not be authentic, as some claim about this genuinely hilarious video.
The ninth step in the EDRM model, Presentation, is the home of complex, sometimes arcane evidence rules and unexpected rulings. The recent order by Judge Shushan in the largest case in the country shows that these evidentiary considerations and arguments are an essential part of e-discovery practice.
Objections to admissibility can come at your from many directions. For instance, in another order in the Deepwater case, Judge Shushan denied an objection to other email based on spousal privilege. She held that the email was not covered by this privilege because a husband had no reasonable expectation of privacy in emails sent to his wife from his work computer. See EvidenceProf Blog.
You neglect evidentiary analysis at your peril. Be prepared and do not be surprised when you hear some new outbursts at trial when you move to admit email into evidence, such as:
Defense Counsel: Objection your honor. Counsel has not proven that this e-mail was not sent or received casually, nor that its creation was just a mere isolated incident.
Plaintiff’s Counsel: But your honor, the witness testified that he was wearing a tuxedo when he sent this email. That proves it was not sent casually. Further, it could not have been isolated because our deduplication software found five copies of this email.
Get ready for some interesting appeals too.
3 Comments | Evidence, Lawyers Duties, Spoliation/Sanctions | Permalink
Posted by Ralph Losey
Facebook’s success suggests that for organizations to prosper in a rapidly changing technological society, in other words, in today’s world, they must: focus on impact, be fast, be bold, be open, and build social value. To attain these goals they must adopt iterative processes for continuous improvements. They must promote a hands-on meritocratic culture where an idea is adopted if it works, no matter who suggested it. This is the core meaning of Facebook’s motto – Code wins arguments. It is a very practical and egalitarian approach to management.
Last week in my blog “The Hacker Way” – What e-Discovery Can Learn From Facebook’s Culture and Management I brought Mark Zuckerberg’s Letter to Investors to your attention. The letter disclosed Facebook’s core values, which Zuckerberg calls the Hacker Way. My article also began an exploration of how this new philosophy of work can be applied in our world of e-discovery. This week I’ll take the application theme a little further. I am convinced that all organizations in the e-discovery world – law firms, vendors, corporations, governments and others – can benefit from applying Facebook’s three-fold code wins methods, and five-fold Hacker Way goals.
It doesn’t take a Zuckerberg to realize that these methods and goals could be applied to any 21st Century field of endeavor. Are you involved in some way in management of your law firm or company? Do you want to stay competitive and remain relevant? If you stand still and keep the old management style and values, you will quickly fall far behind. The business and professional motivations to study Facebook’s success are obvious. I hope you will think about it, leave comments below, and help me figure out how we can all benefit from Zuckerberg’s insights.
Personal Apps?
There may even be applications of the Hacker Way to your personal life and code of conduct. Do you want your life to have an impact on the world? To have meaning? Do you want your life to embody ethical values that you are proud of? Do you share, or are you closed off, an iconoclastic island? Are you open to change, no matter how fast it may come? Can you take action, make decisions? Can you quickly implement your decisions? Are you efficient and productive? Do you dare to be bold, or just follow timid conventions of old?
I certainly will not try to answer these questions here, nor share the kind of personal fractal solutions that I try to fashion on a day-to-day basis; the iterations of action, observations, analysis, adjusted actions, repeat. I just raise the questions to stimulate your personal thinking. Everyone has their own solution to the enigma that is life. There is no one right answer. We each have our own path on the Hacker Way. This essay will instead focus on the practical applications of Hacker Way to e-discovery management.
Impactful
In e-discovery, like anything else, you have to focus and prioritize. You cannot do everything at once, at least not if you are going for impact, or for quality for that matter. Scatter-brained is a recipe for failure. So is not knowing what to focus on first. You have to pick and choose your battles, your time, energy, and money. All tasks are not created equal. Some are more important than others. Generally you should focus on them first, and then move on to secondary problems. A wise project manager knows what to focus on and when.
The big picture, from the highest elevation, shows that the core problems in e-discovery today are the high costs of e-discovery and the low skills of practitioners. You could say high costs and high risks, but I really think that the risk management problem is secondary to the skills problem. Attorneys trained in e-discovery have the skills to avoid the colossal mistakes that we read about in the court opinions every day. See eg. Pippins v. KPMG LLP, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012).
To maximize impact e-discovery teams everywhere should focus on these two, costs and training. They should look for bold new ways to control costs and train attorneys. As discussed briefly in “The Hacker Way” – What e-Discovery Can Learn From Facebook’s Culture and Management, for me cost control means focusing on search, since review is the most expensive part of any production project. It also means building new aggressive culling methods, such as Bottom Line Driven Proportional Review.
This is also an area for vendors to be bold. Vendors must lead the way by making advanced predictive coding type software far less expensive than it is today. Making a thousand dollars each on ten-thousand users makes you ten times as much money as making ten-thousand dollars on a hundred users. Come on software companies, you know who you are, bring down your prices! Don’t make me name names.
The high price of advanced search software is a core problem. When it is fixed it will have a big impact on e-discovery. Who will be the new Facebook of e-discovery search? Fame and fortune await the bold company who can now move fast. The same old timid low-volume, high-profit approach must be abandoned. Try a new value approach in your next iteration. You need to do so fast before the first-to-market competitor eats your lunch.
In addition to solving the needle-in-the-haystack problem, another good way to cut costs and maximize the impact of an e-discovery team is to better prepare for e-discovery. You can have a high impact on both costs and skills by engaging in what I call an e-discovery readiness program. It typically involves what the old EDRM referred to as Information Management. But e-discovery readiness actually involves far more than that, including massive amounts of education and training, not only for lawyers, outside and in-house, but also for corporate IT and management stake-holders. It involves forming a functioning corporate e-discovery team, updating electronic retention policies, especially email. It also requires design of proportional litigation hold procedures, and efficient ESI storage architecture and software.
This kind of pre-litigation readiness program should be adopted by all corporations, governments, and other large organizations who must routinely litigate and respond to subpoenas as a cost of doing business. It can result in tremendous savings, just like a more efficient culling and search method.
Fast
The 2006 Amendments to the Federal Rules of Civil Procedure put a premium on speed. You have to work fast to get your act together before the initial 26(f) conference. Under the new rules you are required to discuss and disclose your e-discovery plan, including your preferred format of production, preservation efforts, and plan for search and review. Evolving case law on litigation holds also requires you to act fast, to send out written notices quickly, to collect key ESI quickly.
Obviously most search, review and production projects also require you to act fast to meet tight time deadlines. How many files an hour can your CAR go, your Computer Assisted Review? You have got to be fast to succeed in e-discovery. Yet, at the same time, you must act reasonably and minimize mistakes. This means that you must have quality control methods built into your CARs. You have to know when to double-check your efforts. There are straightaways in e-discovery where you can go fast, such as irrelevancy culling, and there are curves, such as privilege review. You have to know when and where to slow down so you don’t go flying off the curves.
Some analyses and conversations need to happen quickly, right at the beginning of a case. Determination of key players and key player interviews and preservation instructions come to mind. So too do conversations with IT to suspend automatic deletions and old hard-drive recirculation. So many things in e-discovery are front-loaded. You have to act fast at the beginning of a case. This is a big change in culture where for decades Rule 26(f) meet and greets have been mere drive-bys, where the initial discovery analysis could be postponed. Now it cannot. Now you must act fast and early.
Fast is also important in law firm management. Firms need to quickly get their e-discovery departments up to speed. They need to move fast to ramp up their attorneys’ skills. Gradualism is a recipe of failure. You cannot just wait until the next generation figures it out. Yes, it may be easier for the twenty-somethings to learn this new area of law, but do you really want them to do that by trial and error on your clients’ cases? Do your clients want that? Anyway, they won’t learn the right way to do things. They will stagger along without the benefit of senior advisers.
For a law firm to move fast, they really need to do what my law firm did, and others have done. They need to hire an outside attorney who is already skilled. Then the senior experts can train and help others get up to speed, especially the young rock-star e-disco associates who otherwise practice e-discovery without adult supervision.
Vendors need to move fast too. Indeed, the pressure on vendors is even more intense because the competition is hotter. Speed and early adoption are all important in the world of e-discovery vendors. They cannot slow-poke around with yesterday’s technologies, such as keyword-only based search, or expensive on-site licenses. They need racing CARs. They need to move, and move quickly, to affordable SaaS based delivery systems, and to bring those prices down, if they are going to win the race. They need advanced search with artificial intelligence (“AI”) type agents that the user trains, i.w. predictive coding type software. SIRI is here to stay. Take a look at Nokia’s and Research in Motion’s stock values as compared to Apple. Which team to do you want to be on?
By the way, some have questioned my use of the term AI in connection with the new search algorithms. Please note the generally accepted definition of AI is “the study and design of intelligent agents”[1] where an intelligent agent is a system that perceives its environment and takes actions that maximize its chances of success. This is what I mean by AI. SIRI is example of this. Admittedly, we are still in the early design stages of AI agents for e-discovery (and phones). I know that our programs today will look pretty stupid in a few years. (So will everything else as the pace of change and improvements continue to accelerate.) But the first vendors out there with smart AI agents will gain a huge competitive advantage. Those stuck in hyped-up keyword searches, which is just 1960s technology with better interface and faster execution, will go the way of the buggy whip manufactures. You know who you are. Don’t say I didn’t warn you. You had better go out there and hire a team of information scientists now if you want to keep up.
Bold
Timid and lawyer are two words that were never meant to go together. Yet for most AmLaw 100 law firms today, they do, at least when it comes to e-discovery. For a law firm to be bold, they need to do what my law firm did, and others have done. They need to hire outside attorneys who are already skilled, and they need to make a full commitment to these attorneys and what they bring to the table. That means hiring them as a Partner, like I was, or my friend Paul Weiner was, not as an Of Counsel or Special Counsel, or even worse, as non-partner track Staff Attorney. But there is more to this than just titles. The newly hired e-discovery experts should be provided with authority to make a real e-discovery team, not just design a marketing ploy. National e-Discovery Counsel, like Paul and I, need to have the clout of Partner status, and top management back-up, to be taken seriously and implement necessary changes.
The attorneys who specialize in e-discovery should dedicate their whole practice to e-discovery, and e-discovery alone. Be bold and go all the way. Unless you are full time, like Paul and me, and Paul’s partners Cecil Lynn and Michael McGuire, to name just a few, you really will not have the time and experience to master this complex subject. Would you want your heart surgeon to be a part-timer who also does podiatry? Would you want your anti-trust lawyer to also be a family law practitioner? Law, like medicine, is complex and e-discovery is one of the most complex subjects in the law today. Law firms had better move quickly to hire or facilitate full time practitioners. It does not work to just have a few lawyers in a firm that dabble part time in this new area of the law. Mistakes will inevitably follow as the dangerous little-bit-of-knowledge syndrome sets in. As Alexander Pope said in 1709:
A little learning is a dangerous thing;
drink deep, or taste not the Pierian spring:
there shallow draughts intoxicate the brain,
and drinking largely sobers us again.
Halfway, band-aid measures won’t cut it in e-discovery. You have got to go either all-in or all-out. The days of a law firm setting up a marketing type e-discovery department by sending out a few of its attorneys to CLEs, and then posturing them as experts, are long gone. It takes bold all-out efforts. You need to hire full-timers and give them authority. Mere marketing with part-timers can be set up fast, but that is not bold. That is same-old, same-old. That is timid.
Longtime e-discovery commentator and consultant George Socha is also leery of poser type law firm practice groups. In the recent LTN article, True Grit: Four Models to Rein in E-Discovery Costs, that featured Paul Weiner on its cover (who is no poser), George is quoted as saying that most law firms:
[C]ontinue to be marketing groups more than anything else. I continue to see that most lawyers at firms with putative internal EDD practice groups either do not know those groups exist or do not use them. Firms ought to do a better job of taking control of EDD, at least for those clients who lack the wherewithal to take on EDD themselves. Firms seem unwilling, however, to make the initial and on-going investments needed for that to happen.
How many of the AmLaw 100 law firm’s have bona fide e-discovery practice groups with at least one partner who does electronic discovery full time? That is the true litmus test for bold management, a test which most firm’s fail. It bears repeating: timid and lawyer are two words that were never meant to go together. Be bold law firm managers. Be a mighty mouse, not timid rodent. Hire a full-time expert e-discovery lawyer as a partner in your firm today and give him or her the juice they need to get things done.
As to vendors, be bold and be willing to take a chance, to go with the changes sweeping the industry. Stop trying to milk your outdated products for all they are worth from uneducated consumers who don’t know any better. Get rid of your old products instead of adding a few minor enhancements each year. Shorten your new product cycles. Invest in research. Buy or be bought already. Look to a company like Clearwell for a Hacker Way to do things right.
Above all dear vendors, be bold and lower your prices. I know that vendors are not like lawyers and law firms who have a fiduciary duty to their clients. Vendors instead have a duty to their shareholders to maximize profits. I get that. But you can still do that and lower prices, because this will increase the number of sales. It is a virtuous cycle. The more affordable e-discovery becomes, the more lawyers will do e-discovery. Lower prices will increase sales, and thereby increase profits too. Be bold. Be the first to step up to the plate and make dramatic price reductions, not just a little bit here and there.
Open
Vendors need to be more open about their profits and their black boxes. Got some special mojo? Then patent it like the rest of the technology industry does, and protect yourself that way, instead of by using trade-secrets. Software vendors, open up your black box! Show us the secret sauce and you will go a long way to building trust.
Openness builds trust. That is why transparency is now a key component to the new paradigm of discovery cooperation. The way to walk your talk in cooperation is by disclosure. How did you go about preservation? How did you go about finding the documents requested? Use the tools of sampling. Make aggressive disclosures so that you can support your proportionality arguments. As Judge McMahon said recently in Pippins v. KPMG LLP, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012):
But I cannot conclude that the cost of preserving the hard drives outweighs its benefit, as KPMG urges, any more than Judge Cott could, because the record before me is devoid of information necessary to conduct such an analysis. See Order at *8. KPMG refused to allow Judge Cott, or Plaintiffs examine even a single hard drive to ascertain the “benefit” of preservation, so there is nothing in the record before me to inform any decision. Even assuming that KPMG’s preservation costs are both accurate and wholly attributable to this litigation which I cannot verify – I cannot possibly balance the costs and benefits of preservations when I’m missing one side of the scale (the benefits). Neither can I conclude that KPMG has kept hard copy data of everything on the drives that might prove relevant to this action. KPMG cannot simultaneously demand that the Court analyze how long every Audit Associate worked and what every Audit Associate did and also ask the Court to sanction the destruction of what is probably the single best source of that information.
In short, KPMG is hoist on its own petard.
The petard here is KPMG’s refusal, no doubt upon advice of counsel, to make disclosure, to be open.
As Judge McMahon went on to explain:
I certainly do not intend to reverse Judge Cott’s Order on the purported ground that he erred by concluding that KPMG failed to demonstrate that preserving the hard drives was unreasonable. Frankly, the only things that were unreasonable were: (1) KPMG’s refusal to turn over so much as a single hard drive so its contents could be examined; and (2) its refusal to do what was necessary in order to engage in good faith negotiations over the scope of preservation with Plaintiffs’ counsel, in purported reliance on an order of this Court that it interpreted unreasonably. It smacks of chutzpah (no definition required) to argue that the Magistrate failed to balance the costs and benefits of preservation when KPMG refused to cooperate with that analysis by providing the very item that would, if examined, demonstrate whether there was any benefit at all to preservation.
KPMG’s attorneys here were bold in their litigation conduct, but not open. As a result their actions were seen as chutzpah. Judge McMahon earlier detailed some of the failures to be open that caused him to affirm the Magistrate’s earlier controversial ruling:
KPMG, hiding behind the stay of discovery, insisted it could not produce even one hard drive for inspection by Plaintiffs. It also refused to respond to any question regarding the content of the hard drives, furnish Plaintiffs’ access to any hard drives, inform Plaintiffs whether the data on the hard drives might be derived from other sources, or discuss the costs of possible alternatives to preserving the data on the hard drives. Instead, KPMG made a series of “take it or leave it” offers, and sought to have Plaintiffs agree that KPMG only had to preserve a smaller sample of the hard drives without giving Plaintiffs the opportunity to review the contents of any hard drive(s) first. (Citations to the record omitted.)
Old school, hide-the-ball, “take it or leave it” approaches no longer work in e-discovery. When are the old-timey, non-specialists trial lawyers going to get it? When are they going to move over and just let the full-time experts do e-discovery without interference? There will still be plenty for the trial lawyers to do, plenty to argue about. Above all, when are clients finally going to catch on and insist upon an open, expert approach?
Values
Building social value is no longer an idealistic pie-in-the-sky dream. It is an effective business strategy. It is an especially effective strategy for professions such as medicine and law, occupations that by nature have a higher calling than just making money. Lawyers serve their clients and the law. It is a dual task and if there is conflict between the two, the law must always prevail. That is why we have extensive an code of professional conduct.
The ethical codes of the legal profession embody our values. They provide a solid guide to the conduct of our services, our noble quest for truth, justice and liberty. The ethical codes require all lawyers to be competent, and, if faced with a legal task wherein they are not competent, such as e-discovery, to bring in other attorneys who are. Model Rule 1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”)
Our ethics also requires diligence, a task that is impossible unless you actually know what to do and when to do it. Model Rule 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”) The Hacker Way value of fast action is thus built into our code. It is emphasized again by Model Rule 3.2 that requires lawyers to expedite litigation. (“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”)
Our values also require candor towards the tribunal, the judges. Candor means openness and complete honesty. It is a core value that may never be broken under any circumstances. Should it violate your duty of loyalty to your client, you are required to withdraw from representation, rather than ever be dishonest and closed to the presiding judge. Model Rule 3.3 (“(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . . (3) offer evidence that the lawyer knows to be false. . . .”)
Our values as lawyers also requires fairness to the opposing party in litigation and fairness to the opposing counsel. This means, among other things, that games of hide-the-ball are forbidden. This does not mean that you should provide evidence harmful to your client that was not requested, or not relevant, or that you are not legally required to produce such as privileged information. But if it was requested, is relevant, and you are legally required to produce it, it is unethical not to do so. If the client refuses to do so, you should withdraw. Model Rule 4-3.4 (“A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.”)
In the United States, like the rest of the civilized world, citizens have a fundamental right to justice, to due process. If it costs too much to discover the truth, they are deprived of that right. If only the rich can afford to find the truth needed to do justice, then the values we have worked so hard to develop in this country and the world over the last several centuries will be destroyed. We cannot let that happen.
Lawyers and judges must take the proportionality principle very seriously. We must innovate and constantly improve our methods to control the costs of e-discovery, to make it affordable to all. Vendors have a key role to play in this process of cost containment. They can and must work side-by-side with law firms to keep our litigation just, speedy and inexpensive. That is how we can all work together to build social value in e-discovery.
Conclusion
We can all learn from the Hacker Way that has been implemented so successfully by Facebook. It’s five goals and three methods provide good advice to all, even to senior lawyers wrapped up in e-discovery who may think they already know it all. There is always room for improvement, for growth. Those of us who are hands-on everyday in e-discovery know this to be true.
The legal profession does not usually take advice from 27 year-olds, but that is part of a meritocracy. If a young associate is right on a point of law, they are right. Their age does not matter. The law has always striven to be a meritocracy, so this is really nothing new. We should take advice from wherever it comes, if it is good advice, if it has been proven to be sound. The success of Facebook is proof enough for me. Code wins arguments, so too do stock prices. Let’s watch the Facebook IPO and see what happens, and beyond, as it continues to change every aspect of the lives of millions of people around the world. The Hacker Way is worthy of further study. I look forward to your comments below.
Leave a Comment » | Lawyers Duties, Technology | Permalink
Posted by Ralph Losey
Facebook’s regulatory filing for its initial public stock offering includes a letter to potential investors by 27 year old billionaire Mark Zuckerberg. The letter describes the culture and approach to management that he follows as CEO of Facebook. Zuckerberg calls it the Hacker Way. Mark did not invent this culture. In a way, it invented him. It molded him and made him and Facebook what they are today. This letter reveals the secrets of Mark’s success and establishes him as the current child prodigy of the Hacker Way.
Hacker History
This tradition and way of thinking and doing have been around since at least the sixties. It has little or nothing to do with illegal computer intrusions. It is often called the hacker ethic and, surprisingly, arose out of the hobby of model railroad building and MIT computer labs. This philosophy is well-known and has influenced many in the tech world, including the great Steve Jobs (who never fully embraced its doctrines), and Steve’s hacker friend, Steve Wozniak, the laughing Yoda of the Hacker Way. The Hacker approach is primarily known to software coders, but can apply to all kinds of work. Even a few lawyers know about the hacker work ethic and have been influenced by it.
Who is Mark Zuckerberg?
We have all seen a movie version of Mark Zuckerberg in The Social Network, who, by the way, will still own 56.9% voting control of Facebook after the public offering later this year. But who is Mark Zuckerberg really? His Facebook page may reveal some of his personal life and ideas, but how did he create a Hundred Billion Dollar company so fast?
How did he change the world at such a young age? There are now 850 million people on Facebook with over 100 billion connections. On any one day there are over 500 million people using Facebook. These are astonishing numbers. How did this kind of creative innovation and success come about? What drove Mark and his hacker friends to labor so long, and so well? The letter to investors that Mark published gives us a glimpse into the answer and a glimpse into the real Mark Zuckerberg. Do I have your full attention yet?
The Hacker Way philosophy described in the investor letter explains the methods used by Mark Zuckerberg’s and his team to change the world. Regardless of who Mark really is, greedy guy or saint (or like Steve Jobs, perhaps a strange combination of both), Mark’s stated philosophy is very interesting. It has applications to anyone who wants to change the world, including those of us trying to change the law and e-discovery.
Hacker Culture and Management
Mark’s letter to investors explains the unique culture and approach to management inherent in the Hacker Way that he and Facebook have adopted.
As part of building a strong company, we work hard at making Facebook the best place for great people to have a big impact on the world and learn from other great people. We have cultivated a unique culture and management approach that we call the Hacker Way.
The word `hacker’ has an unfairly negative connotation from being portrayed in the media as people who break into computers. In reality, hacking just means building something quickly or testing the boundaries of what can be done. Like most things, it can be used for good or bad, but the vast majority of hackers I’ve met tend to be idealistic people who want to have a positive impact on the world.
The Hacker Way is an approach to building that involves continuous improvement and iteration. Hackers believe that something can always be better, and that nothing is ever complete. They just have to go fix it — often in the face of people who say it’s impossible or are content with the status quo.
Hackers try to build the best services over the long term by quickly releasing and learning from smaller iterations rather than trying to get everything right all at once. To support this, we have built a testing framework that at any given time can try out thousands of versions of Facebook. We have the words `Done is better than perfect’ painted on our walls to remind ourselves to always keep shipping.
Hacking is also an inherently hands-on and active discipline. Instead of debating for days whether a new idea is possible or what the best way to build something is, hackers would rather just prototype something and see what works. There’s a hacker mantra that you’ll hear a lot around Facebook offices: `Code wins arguments.’
Hacker culture is also extremely open and meritocratic. Hackers believe that the best idea and implementation should always win — not the person who is best at lobbying for an idea or the person who manages the most people.
To encourage this approach, every few months we have a hackathon, where everyone builds prototypes for new ideas they have. At the end, the whole team gets together and looks at everything that has been built. Many of our most successful products came out of hackathons, including Timeline, chat, video, our mobile development framework and some of our most important infrastructure like the HipHop compiler.
To make sure all our engineers share this approach, we require all new engineers — even managers whose primary job will not be to write code — to go through a program called Bootcamp where they learn our codebase, our tools and our approach. There are a lot of folks in the industry who manage engineers and don’t want to code themselves, but the type of hands-on people we’re looking for are willing and able to go through Bootcamp.
So sayst Zuckerberg. Hands-on is the way.
Application of the Hacker Way to e-Discovery
E-discovery needs that same hands-on approach. E-discovery lawyers need to go through bootcamp too, even if they primarily just supervise others. Even senior partners should go, at least if they purport to manage and direct e-discovery work. Partners should, for example, know how to use the search and review software themselves, and from time to time, do it, not just direct junior partners, associates, and contact lawyers. You cannot manage others at a job unless you can actually do the job yourself. That is the hacker key to successful management.
Also, as I often say, to be a good e-discovery lawyer, you have to get your hands dirty in the digital mud. Look at the documents, don’t just theorize about them or what might be relevant. Bring it all down to earth. Test your keywords, don’t just negotiate them. Prove your search concept by the metrics of the search results. See what works. When it doesn’t, change the approach and try again.
Iteration is king of ESI search and production. Phased production is the only way to do e-discovery productions. There is no one final, perfect production of ESI. As Voltaire said, perfect is the enemy of good. For e-discovery to work properly it must be hacked. It needs lawyer hackers. Are you up to the challenge?
Mark’s Explanation to Investors of the Hacker Way of Management
Mark goes on to explain in his letter to investors how the Hacker Way translates into the core values for Facebook management.
The examples above all relate to engineering, but we have distilled these principles into five core values for how we run Facebook:
Focus on Impact
If we want to have the biggest impact, the best way to do this is to make sure we always focus on solving the most important problems. It sounds simple, but we think most companies do this poorly and waste a lot of time. We expect everyone at Facebook to be good at finding the biggest problems to work on.
Move Fast
Moving fast enables us to build more things and learn faster. However, as most companies grow, they slow down too much because they’re more afraid of making mistakes than they are of losing opportunities by moving too slowly. We have a saying: “Move fast and break things.” The idea is that if you never break anything, you’re probably not moving fast enough.
Be Bold
Building great things means taking risks. This can be scary and prevents most companies from doing the bold things they should. However, in a world that’s changing so quickly, you’re guaranteed to fail if you don’t take any risks. We have another saying: “The riskiest thing is to take no risks.” We encourage everyone to make bold decisions, even if that means being wrong some of the time.
Be Open
We believe that a more open world is a better world because people with more information can make better decisions and have a greater impact. That goes for running our company as well. We work hard to make sure everyone at Facebook has access to as much information as possible about every part of the company so they can make the best decisions and have the greatest impact.
Build Social Value
Once again, Facebook exists to make the world more open and connected, and not just to build a company. We expect everyone at Facebook to focus every day on how to build real value for the world in everything they do.
________
Applying the Hacker Way of Management to e-Discovery
Focus on Impact
Law firms, corporate law departments, and vendors need to focus on solving the most important problems, the high costs of e-discovery and the lack of skills. The cost problem primarily arises from review expenses, so focus on that. The way to have the biggest impact here is to solve the needle in the haystack problem. Costs can be dramatically reduced by improving search. In that way we can focus and limit our review to the most important documents. This incorporates the search principles of Relevant Is Irrelevant and 7±2 that I addressed in Secrets of Search, Part III. My own work has been driven by this hacker focus on impact and led to my development of Bottom Line Driven Proportional Review. Other hacker oriented lawyers and technologists have developed their own methods to give clients the most bang for their buck.
The other big problem in e-discovery is that most lawyers do not know how to do it, and so they avoid it altogether. This in turn drives up the costs for everyone because it means the vendors cannot yet realize large economies of scale. Again, many lawyers and vendors understand that lack of education and skill sets is a key problem and are focusing on it.
Move Fast
This is an especially challenging dictate for lawyers and law firms because they are overly fearful of making mistakes, of breaking things as Facebook puts it. They are afraid of looking bad and malpractice suits. But the truth is, professional malpractice suits are very rare in litigation. Such suits happen much more often in other areas of the law, like estates and trusts, property, and tax. As far as looking bad goes, they should be more afraid of the bad publicity from not moving fast enough, which is a much more common problem, one that we see daily in sanctions cases. Society is changing fast, if you aren’t too, you’re falling behind.
The problem of slow adoptions also afflicts the bigger e-discovery vendors who often drown in bureaucracy and are afraid to make big decisions. That is why you see individuals like me starting an online education program, while the big boys keep on debating. I have already changed my e-Discovery Team Training program five times since it went public a little over a year ago. `Code wins arguments.’ Lawyers must be especially careful of the thinking Man’s disease, paralysis by analysis, if they want to remain competitive.
A few lawyers and e-discovery vendors understand this hacker maxim and do move fast. Many vendors appreciate the value of getting there first, but only a few law firms do. These rare law firms understand that the risks of lost opportunities are far more dangerous and certain than the risks of a making a few mistakes along the way. The slower, too conservative law firms are already starting to see their clients move business to the innovators, the few law firms who are moving fast. These firms have more than just puffed-up websites claiming e-discovery expertise, they have dedicated specialists and, in e-discovery at least, they are now far ahead of the rest of the crowd. Will the slow and timid ever catch up, or will they simply dissolve like Heller Ehrman, LLP?
Be Bold
This is all about taking risks and believing in your visions. It is directly related to moving fast and embracing change; not for its own sake, but to benefit your clients. Good lawyers are experts in risk analysis. There is no such thing as zero-risk, but there is certainly a point of diminishing returns for every litigation activity that is designed to control risks. Good lawyers know when enough is enough and constantly consult with their clients on cost benefit analysis. Should we take more depositions? Should we do another round of document checks for privilege? Often lawyers err on the side of caution, without consulting with their clients on the costs involved. They follow an overly cautious approach wherein the lawyers profit by more fees. Who are they really serving when they do that?
The adoption of predictive coding provides a perfect example of how some firms and vendors understand technology and are bold, and others do not and are timid. Many lawyers are afraid of predictive coding because there is no legal opinion to bless the new technology. But, as Judge Peck pointed out in his recent article, the law does not work that way, and you are waiting needlessly. Predictive Coding: Reading the Judicial Tea Leaves, (Law Tech. News, Oct. 17, 2011). No legal opinion blesses brute force manual review or keywords search. A few law firms and vendors understand the enormous value of predictive coding and the wisdom of Judge Peck’s advice. They understand the minimal risks involved, and consult with their clients about it in an informed and intelligent manner. These firms and vendors are embracing the new search methods and reaping the rewards. They are harnessing the ranking power of predictive coding for defensible culling. They manage their risks with cooperation, sampling, high skilled reviewers, and other best practices.
The legal profession is like any other industry, it rewards the bold, the innovators who create new legal methods and law for the benefit of their clients. What client wants a wimpy lawyer who is over-cautious and just runs up bills? They want a bold lawyer, who at the same time remains reasonable, and involves them in the key risk-reward decisions inherent in any e-discovery project.
Be Open
In the world of e-discovery this is all about transparency and strategic lowering of the wall of work product. Transparency is a proven method for building trust in discovery. Select disclosure is what cooperation looks like. It is what is supposed to happen at Rule 26(f) conferences, but seldom does. The attorneys that use openness as a tool are saving their clients needless expense and disputes. They are protecting them from dreaded redos, where a judge finds that you did a review wrong and requires you to do it again, usually under very short timelines. There are limits to openness of course, and lawyers have an inviolate duty to preserve their client’s secrets. But that still leaves room for disclosure of information on your own methods of search and review when doing so will serve your client’s interests.
Build Social Value
The law is not a business. It is a profession. Lawyers and law firms exist to do justice. That is their social value. We should never lose sight of that in our day-to-day work. Vendors who serve the legal profession must also support these lofty goals in order to provide value. In e-discovery we should serve the prime directive, the dictates of Rule 1, for just, speedy, and inexpensive litigation. We should focus on legal services that provide that kind of social value. Profits to the firm should be secondary. As Zuckerberg said in the letter to potential investors:
Simply put: we don’t build services to make money; we make money to build better services.
This social value model is not naive, it works. It eventually creates huge financial rewards, as a number of e-discovery vendors and law firms are starting to realize. But that should never be the main point.
Conclusion
Facebook and Mark Zuckerberg should serve as an example to everyone, including e-discovery lawyers and vendors. I admit it is odd that we should have to turn to our youth for management guidance, but you cannot argue with success. We should study Zuckerberg’s 21st Century management style and Hacker Way philosophy. We can learn from its tremendous success. Zuckerberg and Facebook have proven that these management principles work in the digital age. It is true if it works. That is the pragmatic tradition of American philosophy. We live in fast changing times. Embrace change that works. As the face of Facebook says: “The riskiest thing is to take no risks.”
Postscript
Check out the DevBeat article Famous hackers discuss Zuckerberg’s “Hacker Way”. Apparently I’m not the only one who finds this story compelling. Some out-of-the-closet hackers do too, including the open-source crowd, who are critical of Facebook and Zuckerberg. This in spite of the fact that much of Facebook’s software is developed open sourced. They want more. They essentially criticize Mark as too entrepreneurial. They want non-profit purity. Personally I think they are full of it. Hello! This is America. This is a capitalistic culture. Yes, idealism is fine, but you also have to be real. The DevBeat editors ended on a positive note that I agree with:
We’re glad to see hackers portrayed by the young CEO as heroes rather than criminals.
Also, Facebook’s special strain of hacker culture is worth examining in its own right. The company is famous for prizing the iconoclastic work of small teams, for valuing the best solution regardless of provenance, for moving quickly, and for fearlessly building new systems and features from the ground up.
While Zuckerberg’s hacker ethic lacks the purity of its philosophical forebears, it marries some of the principles of hacking with the competitive advantage of a huge, global business. Whether the hacker ethic itself demands purity is another discussion for another day.
4 Comments | Lawyers Duties, New Rules, Review, Search, Technology | Permalink
Posted by Ralph Losey
I hear a lot about how different software will find all relevant documents. That would be 100% recall. I also hear demands from requesting parties to find and produce all relevant documents. In the context of large disorganized banks of electronic data, such as email collections, these claims and demands are not only contra to the rules of law, embedded as they are in reasonability, but they are also unrealistic and contra to the latest scientific research. In my Bottom Line Driven Proportional Review article I showed how this kind of demand for all relevant ESI is not permitted under the rules and Doctrine of Proportionality in big data cases (and most cases these days are big data cases). I explained, as many have done before me, that the rules do not require production of all relevant documents, if the burden to do so is disproportional. I also shared my method for keeping the costs for review proportional to the value and importance of the case and the production request. But aside from the cost issue, how practical is it expect to find all relevant ESI? I examined this question at length in my Secrets of Search series, volumes one, two and three. Still, people find it hard to accept, especially in view of the unregulated clamor of the marketplace.
So as my last gift to readers before Legal Tech starts tomorrow, the ultimate event of marketplace claims and competing exaggerations, I present you with a hard dose of reality, I present you with more findings on legal search from the world of science. This time I direct you to an important article, Evaluation of Information Retrieval for E-Discovery, Artificial Intelligence and Law, 18(4)347-386 (2011). It was written by leaders of TREC Legal Track and established giants in the filed of legal search: Douglas W. Oard, Jason R. Baron, Bruce Hedin, David D. Lewis, and Stephen Tomlinson. They analyzed the now fully published test results of the experiments in 2008, and carefully examined the interactive task, topic 301, as the best test of competing legal search technologies. This task made use of a subject matter expert and an appeals process for quality control on relevance determinations. Four teams of experts participated in the test, two academic and two commercial. A well known e-discovery vendor won the test (scientists hate it when I put it that way). They won because they attained better precision and recall scores than the three other participants.
Now we come to the punch line, the winning vendor attained a recall rate of only 62%. That’s right, they missed 38% of the relevant documents. And they were the winner. Think about it. The other three participants in the scientific experiment attained recall rates of less than 20%! That’s right, they missed over 80% of the relevant documents. Now what do you think about a requesting party who demands that you produce all of the relevant email?
Find my summary of the experiments hard to believe, then read the report for yourself. Here is the excerpt on which I rely at page 24 of Evaluation of Information Retrieval for E-Discovery:
On the basis of the adjudicated sample assessments, we estimated that there are 786,862 documents (11.4% of the collection) relevant to Topic 103 in the test collection (as the topic was de fined by the TA). All four teams attained quite high precision; point estimates ranged from 0.71 to 0.81. One team (notably the one that made the most use of TA time) attained relatively high recall (0.62), while the other three (all making significantly less use of TA time) obtained recall values below 0.20.
The team of information scientists, and their lawyer guide, Jason R. Baron, next report on the 2009 TREC experiments, specifically the one they found most representative, the interactive tasks, again with subject matter consultations and appeals. This time there were eleven teams participating in the experiment, three academic and eight commercial. That’s right, eight e-discovery vendors were in the game this time. How did they do? They did a little better, but not much. Five of the teams, and just five only, got a little over 70% recall.
The post-adjudication results for the 2009 topics showed some encouraging signs. Of the 24 submitted runs (aggregating across all seven topics), 6 (distributed across 5 topics) attained an F1 score (point estimate) of 0.7 or greater. In terms of recall, of the 24 submitted runs, 5 (distributed across 4 topics) attained a recall score of 0.7 or greater; of these 5 runs, 4 (distributed across 3 topics) simultaneously attained a precision score of 0.7 or greater.
Id. at pgs. 24-25. If you follow the article’s direction and see the Overview of the TREC 2009 Legal Track, by B. Hedin, S. Tomlinson, J. Baron, and D. Oard, you can find more details of the 2009 test results. After you wade through the wonderfully dense language that information scientists love to use to convey information, you find section 2.3.5 Final Results. There you are pointed to a table of numbers: Table 6: Post-adjudication estimates of recall, precision, and F1.
What does this chart tell us? The best anyone did was an 86.5% recall on one of the seven tasks. Look at the third column from the left for the recall rates attained. The lowest was 9%. Digging deeper the analysts found that the teams with the highest scores appealed the most, and those with the lowest scores, not at all. Consultation with the topic authority also helped improve scores. But the bottom line for purposes of my point today, is that the average recall rate was only 41% (993/24), and even the best attained on one search, by one team of experts, was only 86%. Demands for recall in the 80s for every project are thus unrealistic.
Conclusion
The scientific research proves, once again, that it is unreasonable to ask for any better recall than 70%, in fact, it should be substantially less. Law demand reasonable efforts, not perfection. The best recall results attainable in scientific experiments, with the best software and top experts at the helm, is way too high a standard for reasonable efforts. Reasonability should be more like average results attained by average lawyers making good faith efforts, not results attained by information scientists and specialists using the best software money can buy. So that means it should be less than less than the 41% average of experts. Even standards like that should be used with caution and the efforts meter should always be tempered by costs. Proportionality of efforts should, if they are in good faith and reasonable, always trump any quality control efforts. See Bottom Line Driven Proportional Review.
In fairness to my vendor friends, the latest reports from TREC are dated. That was then, 2008 and 2009, this is now, 2012. The test scores showed substantial progress from 2008 to 2009. In my experience, the predictive coding type search software has significantly improved in the last year or so. I have also heard unsubstantiated reports of much higher recall rates attained in the 2011 TREC Legal Track tests, but I take all of these claims with a big grain of salt. Until Dr. Oard and his information scientist crew (that, by the way, includes two lawyers, Jason Baron and Maura Grossman) publish results, obtuse as their publications are, I will remain skeptical. Right now science shows that if you can find an estimated 41% of the relevant documents in a large collection of ESI, then you are doing just as good as the experts. That has got to be good enough to meet the reasonable efforts required under the law.
You should be skeptical of any claims or demands for better results than that. You should stop chasing, or being chased, by unreasonable demands for high recall rates. The only way to attain 70% or higher rates today is by document dumps, where precision plummets as you produce irrelevant documents, or, perhaps by budget busting, near-endless iterations of search and seed-set training. Even then, your expensive pursuit is quixotic from the point of view of science, where the fuzziness measurement issue remains unresolved. Furthermore, and most importantly, in today’s world of big data, where everyone has 100,000 emails, it is wasteful in the extreme to try to find all relevant documents. If your are still trying to find them all, and not just the few super-relevant smoking guns, you have not understood that in today’s age, relevant is irrelevant, nor that the ultimate goal of discovery is to prepare for trial, where the 7±2 rule of persuasion reigns supreme.
1 Comment | Lawyers Duties, Review, Search, Technology | Permalink
Posted by Ralph Losey
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Ralph Losey is the lawyer, writer and educator behind the e-Discovery Team blog. Ralph has been practicing law since 1980 and playing with computers and online communications since 1978. He is a partner in a major national law firm and Professor of Law at the U. of Florida. He holds the highest AV peer rating by Martindale Hubbell and has 70 published opinions to his credit. Ralph is the proud father of two children, Eva Grossman, a fitness instructor, and Adam Losey, a lawyer, and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.
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2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.
14. Sanctions, including spoliation findings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.
Copyright © 2007 The Sedona Conference®. All Rights Reserved.
Reprinted courtesy of The Sedona Conference®.
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