The e-Discovery Team blog has now been publishing weekly for seven years, providing a flow of news, analysis and opinion in this area of the law. Readers may have noticed a trend over the last couple of years. e-Discovery Team has moved from a general focus on all aspects of e-discovery, A-Z, to more specialized interests. There is also less case law discussion. The focus is now primarily on the science and systems of legal search and review, and secondarily on general best practices, or, as some like to call it (I don’t), on standards, and on e-discovery business – our vendor friends on the e-discovery team.
Declaration of Independence
Speaking of business, I would like to point out that this blog is, and always has been, totally independent, both vendor neutral and law firm neutral. There are no ads on the e-Discovery Team blog of any kind, except for the e-Discovery Team training program. All of the opinions are entirely my own, or that of any contributing blogger. See the Disclaimer. The blog remains unique in that respect. It is not supported by any vendor, nor any law firm. Its only agenda is the truth as I see it, and what is of interest to me.
If you appreciate that, then consider supporting the online training program for your company, firm, government agency, colleagues, and friends. That training program support, and my own pocketbook, are the only source of funds to keep this blog going. Although I may mention vendors on the blog, no vendor, nor law firm funds this effort. No one can buy my personal opinions. And I do not advocate here other’s opinions for hire. My time and advice is for sale, that’s what lawyers do, but not my personal opinions, and that is what you’ll see here.
Blog’s Shift in Focus Over Past Seven Years
Readers may also have noticed that the blog’s discussion and analysis of new cases has slowly waned. Over the last year, for instance, there have been more than fifty-two blogs, each running from three thousand to five thousands words, but only six of them have reported on new cases. Only six have been devoted to court’s performing their craft of modeling the law. Compare that with the early years of the blog, where almost every week was devoted to analysis of a new judicial opinion, where I reported on fast-evolving law as an art form of sorts. Our great artists were the rock star judges, as the ABA Journal called them, starting with Scheindlin, but quickly including other greats like Waxse, Facciola, Grimm, Hedges, Peck, Maas, Nolan, Laporte, Shaffer, etc.
In the first five years of the blog I had no trouble finding a new case every week to blog about. Many seemed to be important for one reason or another. But over the last two years, fewer and fewer cases seem that interesting, much less worthy of extended analysis. The evolution of the e-Discovery Team away from case law is due in part to the more narrow subject matter focus of the blog, but also because there just aren’t that many new and great cases these days.
The rules that were new in 2006 are no longer new, and have now been interpreted many times. Although I keep reading almost every new case in the field of e-discovery, that is, after all, part of being a specialist, I find myself routinely saying been there, done that. Oh sure, I could keep reporting new cases, even if they bore me, but other blogs do that, and besides, if I’m bored, so will my readers. That is one thing I refuse to do. You may not agree with my windy opinions and analysis, but at least you know where I stand, and won’t be bored. I hate boring writings, and I’m sure you do too.
The lack of new important cases is not the fault of the mentioned great artist-jurists. It is rare for any of them to have landmark case opportunities anymore. They too have been there done that. They can refer to past decisions. Some move on to other interests. Some stay focused on advancing the law of e-discovery, but do so as orators and teachers. They criss-cross the country in a seemingly never-ending series of CLEs.
Law as art, as legal opinions, continues to evolve, but no longer in landmark decisions like Zubulake, Mancia, Victor Stanley and Pension Committee, to name just a few. Instead, the art progresses in a series of less dramatic implementations in countless courtrooms around the country. It progresses in countless baby-steps made by other judges interpreting precedent. It also progresses in thousands of CLEs, a more pedantic method to be sure, but in some ways more personal. It progresses though appearances of the established star judges, and new judges, at legal events outside of the courtroom. It is, for instance, one thing to read one of Judge Facciola’s witty opinions, it is quite another to see and hear the Italian-sage in person.
Many great lawyers are teaching too, along with scholars, and even a few professors. The judges are just part of the teaching team of regulars, of experts in the field, who give tirelessly of their time to advance the law. I am proud to have become friends with many of them, lawyers and jurists alike. This right of jurists and lawyers to work together to teach our profession came under harsh attack in the last two years, but the freedom of assembly survived and is now stronger than ever. The first amendment and due process triumphed. This is not a personal win. It is not about any one lawyer or judge. It is a victory for our whole profession. But I digress.
The lesser importance of case law is, I suppose, a natural result of the maturation of the field. As time marches on, there are fewer and fewer cases of first impression, fewer and fewer landmark opinions. The once-new-rules have now been interpreted many times by many courts. The common law governing e-discovery is also starting the clarify. The biggest disputed area these days, sanctions law, is conflicted to be sure, but even with sanctions, the issues are starting to become pretty well defined. One court says gross-negligence, another says bad faith, but in reality, it’s all about the facts, not the law. Read the cases. Nobody but the most egregious spoliator actually suffers serious sanctions. So while the facts of these spoliation cases remain interesting in a perverse sort of way, the law begin bandied about is not.
The truth is, there have not been many important cases over the last two years for anyone to write about. In fact, the last one I can think of, the one out of the SDNY approving predictive coding, has been taboo at this blog because I’m right in the middle of it. Someday in memoirs perhaps you’ll hear the real story. It’s really quite funny. But for now I focus on the science of search, not the art of persuasion.
Bottom line, although e-Discovery Team has been consistently devoted to reporting, analysis and opinion throughout its seven year life, the focus has evolved. Over the last couple of years most e-Discovery Team reporting, analysis, and opinion has pertained to scientific research in the field of legal search. As a secondary basis the blog has reported on and analyzed related functions: (1) the new tools science has made possible and vendors have implemented (think predictive coding software); (2) the best practices of search (think multimodal and bottom-line driven); (3) best practices of all other aspects of e-discovery legal practice (think EDBP.com); and, (4) analysis of vendors who engineer for lawyers the search tools that scientists invent, and the management ethic of these vendors, or more typically, lack-of-same (think Hacker Ethic).
Art To Science
The change in this blog has mirrored the change in my legal practice. I am not too involved in the art of persuasion in any one particular case anymore, but instead look at the big picture of all of my firm’s cases. I provide the systems, procedures, and best practices to govern all cases. I am concerned with efficiencies and the repeatability of systems that I have designed for my firm and constantly tweak. I only helicopter in and out of cases when needed. I also love to apply these systems from time to time in challenging document reviews and work with AI-enhanced search and review systems. My practice is moving in this way from art to science.
Despite what C.P. Snow said in The Two Cultures, science and art can not only co-exist amicably, but can provide positive synergies. The two cultures of art and science are still there, and the knowledge gap Snow pointed to in his famous essays still exist, but the gap is closing and much progress has been made recently. The advent of legal search science is just one indication of that.
My work as a search and review lawyer, a seeker of truth, driven to find the smoking guns needed to resolve a dispute as quickly and inexpensively as possible, has also evolved in the direction of science. My review skills have evolved from art to science. Math and random sampling are now regular tools of my trade. Quality control is systematic and repeatable, not ad hoc and one-off.
Search and review tasks have always been my favorite job in the law. Yes, I love strategy and the persuasive arts as much as the next litigator, but what has always turned me on the most is the hunt. I love the detective search for what really happened. The piercing of the veil of lies that surrounds and obfuscates every law suit, every investigation. I don’t eschew the obfuscations, the downright lies of testimony, I circumvent them by finding the contemporaneous writings. Now science is helping me in that legal quest.
The finding of the needle in the haystack has always been a challenge, especially after the advent of computers. Until very recently legal search was an art learned by lawyers putting in tens of thousands of hours of practice. A good search lawyer would develop a strong intuition of what was going on in a case, of what the parties were hiding. A discovery lawyer could use their skills and experience to find the few documents they needed to try a case. Until very recently, legal search was an art, not a science. Indeed, no one in the legal world ever even thought it was possible to make e-discovery more scientific. No one, that is, except for Jason R. Baron.
Somehow Jason had the vision to see that legal search could learn from science, that it could in itself become scientific, more systematic. Not only that, Jason had the initiative and wherewithal to make that happen and did so by founding the Legal Track of TREC. He brought science and law together at the time this blog was started. The rest, as they say, is history, most of which has been described on the e-Discovery Team blog or the video that Jason and I made together, E-Discovery: Did You Know?
Jason and TREC Legal Track teams have not only influenced me, but hundreds of other lawyers (most of whom are e-discoveryteam.com readers) including key vendors, to become much more scientific in their legal search and review. The reports of my more scientific approach to review, the use of metrics, statistics, and predictive coding, have comprised the bulk of my blog posts over the past two years. For me this has been a change from art to science.
That is why I was pleased to see that Kroll Ontrack (KO) came up with art to science as the theme for the companies’ new approach to e-discovery. I wish I had thought of it first. When I heard the art to science slogan for the first time a couple of months ago, I was struck by how well it captured my own transformations as an e-discovery lawyer. They do listen. They not only seem to be on-track, but in-touch. Indeed, the leaders of the company, including the CEO, are regular e-DiscoveryTeam blog readers.
They get it so well that KO has made Art to Science the theme of their new line of products, complete with a new web domain, ediscovery.com. (Why hasn’t someone used this name before you might wonder? Rumor has it KO paid seven figures to a smart young man in Brazil who had been squatting on the ediscovery.com name for years.) KO’s new slogan reflects a more scientific approach to review that is directly in line with my own approach. As KO describes it:
Our goal is to transform ediscovery from an art to a science – something that is predictable, reliable and efficient, with higher quality results. And the key to this transformation is repeatability.
Other vendors are also following this approach, I know. They are listening to scientists, improving their software and systems and going for repeatability and accountability. They understand the lessons of the scientific approach, the lessons of TREC Legal Track. So the race to measure and systematize e-discovery is on. We will all be winners as we move from one-of-a-kind ad hoc reviews (art based) to a more systematic approach (science based).
As part of Kroll Ontrack new e-discovery.com web, and their art to science initiative, KO created this way-cool animation, which I commend for your viewing enjoyment. It is not only a short, cute ad, it provides a clever explanation of what we all do as e-discovery lawyers.
I conclude with an announcement of my own new domain name and web, one that is in accord with the art to science theme that has developed in the last few years of e-DiscoveryTeam.com. Although I paid in the two-figure, not six-figure range for each of these new domain names , I hope you will find them memorable in their descriptiveness. More importantly, I hope you will find their content useful too. Look for improvements in the coming months as I develop these new webs. My new domain name is:
In addition, I picked up a few more related domain names appropriate for the type of legal search science that I practice. They point to two additional references. Click and check them out. They are in the early formative stages, but should already provide some helpful information for your own endeavors or to share with others.
If you find any broken links, or have any questions about these new initiatives, please let me know at firstname.lastname@example.org.