e-Discovery Team ®

The three videos in this blog on the Hacker Way are also included in the Welcome Page of the TAR Course.

The Hacker Way – often called the hacker ethic – has nothing to do with politics or criminal activities. It is the philosophy of the computer age. This credo has influenced many in the tech world, including the great Steve Jobs and Steve’s hacker friend, Steve Wozniak, the laughing Yoda of the Hacker Way. The Hacker approach is primarily known to software developers, but can apply to all kinds of work. Even a few lawyers know about the hacker work ethic and have been influenced by it.

The Hacker Way philosophy was described well by Mark Zuckerberg in his letter to investors for the initial public offering of Facebook:

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.

Mark goes on to explain in his letter how the Hacker Way translates into the five core values of Facebook.

• Focus on Impact
• Move Fast
• Be Bold
• Be Open
• Build Social Value

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.

_________________________________________________

Focus on Impact

____

____

Move Fast

____

Be Bold

____

More on Impact

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. Scatter-brained is a recipe for failure. Any writer of appellate briefs will tell you that. Focus on the key issues if you want to persuade. Put aside the rest. 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.

For instance, in e-discovery look for the smoking guns first, the documents with the highest probative value. Check out the ESI of the key custodians first. Do phased discovery and start your search and production in the data sectors and custodians most likely to give you the biggest bang for your buck. Most of the time with phased production you never need to go beyond the first phase. The low hanging fruit you find up front is usually more than adequate to try the case in a just, speedy and inexpensive manner.

In all kinds of project management, not just discovery, you should focus first on the problems and issues that could have the biggest impact, and then move on to secondary problems. A business manager, just like a wise project manager in an e-discovery review, knows what to focus on and when. Empty suits in the board room lack this kind of focus and ability to prioritize. Perhaps they just do not understand what is important, and what is not. Maybe they are too preoccupied with next quarter’s profits to see the big picture.

Back to e-discovery, the big picture, from the highest elevation, shows that the core problems are the high costs of e-discovery and the low skills of practitioners in using new technologies. Vendors have addressed the cost issue since I last wrote on this back in 2013. I applaud the price cuts we have seen. But vendors had failed on teaching the correct methods for the use of their software. They are still stuck on version 1.0 and 2.0 Vendors, please make your experts get with the program. Have them take the TAR Course and modify your software to rub the latest methods.

More on Fast

Acting fast is second nature to most e-discovery experts by now. The 2006 Amendments to the Federal Rules of Civil Procedure put a premium on speed. We all know you have to work fast to get your act together before the initial 26(f) conference. You have to be prepared to discuss and disclose your e-discovery plan, including your 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 very fast to meet tight time deadlines. How many files per 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 to do conversations with IT to suspend automatic deletions and old computer recycling. So many things in e-discovery are front-loaded that all who practice in this field are used to this kind of time pressure. We know how to act fast, yet tempered, and not hurried. We expect the same from our vendors. Most of the project managers of vendors seem capable of acting fast, but, alas, not so most of the empty suits they report to.

Fast does not mean you abandon quality control or appropriate beta testing. Apparently Facebook itself has had to learn this lesson. See Facebook Puts the Brakes on ‘The Hacker Way’. The Wired article by Ryan Tate points out that since going public Facebook has started slowing down product releases:

It’s testing new tools more thoroughly prior to release and then parsing goodies out slowly to help smoke out even more problems. Facebook’s move toward greater testing is a sign of maturation at the company…

I agree this is a sign of maturation, but I do not agree with Ryan Tate that this means Facebook has put the brakes on the Hacker Way. Tate’s article misstates the Hacker Way as being built solely around the adage “move fast and break things.” But as Mark Zuckerberg’s Letter to Investors shows, that is only a small part of this new work ethic.

Moreover, I do not think Facebook has backed off, in fact the speed of product development after going public has increased dramatically. As Tate’s article admits:

In some regards, Facebook is moving faster than it ever has before. Since going public, it has launched a search engine, a mobile “operating system,” a camera app, a pages app, a “poke” app, an app store, an ad exchange, an online store, a gift card, a video sharing system, at least two major news feed updates, and plenty more. The teenaged Zuckerberg, in full hacker glory as a Harvard underclassman, would have approved of the breakneck product release pace.

Fast does not mean reckless. But the more skilled you become, the faster you can move and still remain safe, still remain within acceptable quality control parameters. Knowing just how fast you can go is an artifact of experience, of age, and it looks like Facebook is gaining that experience.

More on Bold

Who wants to hire a mousy lawyer? Nobody! Timid and lawyer are two words that should never 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. The e-discovery experts should be provided with authority to make a real e-discovery team, not just design a marketing ploy. In that way law firms can keep improving and can build a truly effective law firm for the 21st Century.

If a law firm is satisfied with the status quo, they will not invest in e-discovery. They will be happy with their empty suits. That is, until the hacker led firms start to eat their lunch. Law firm management needs to be bold, to go all-in for e-discovery. They need to hire full time specialists. It does not work to simply ask a few lawyers in the firm to dabble part time.

Timid, halfway, band-aid measures do not work in any complex endeavor, including 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. Again, you need to look beyond this year’s profits to the long term viability of the firm.

George Socha, e-discovery commentator of EDRM fame, now with BDO, is also leery of poser type law firm practice groups. In an LTN article, True Grit: Four Models to Rein in E-Discovery Costs, 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? How many even have one lawyer who does nothing but e-discovery? 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 rat. Go all-in with e-discovery and insure the future prosperity of your firm.

As to vendors, you must also be bold, willing to take a chance, willing to lead, not just tag along with the changes sweeping the industry. Stop trying to milk your outdated products for all they are worth. Get rid of your old products instead of just adding a few minor enhancements each year. Shorten your new product cycles. Invest in research. Listen to your knowledgeable users. Made bold moves, big moves. Get rid of the empty suits in your boardroom. Go with bona fide hackers. And, as always, please get rid of the damn Control Sets in your predictive coding software methods. They are an ugly illusion, unlike the beautiful one below by Akiyoshi Kitaoka, a Professor of Psychology in Kyoto.

For more on Hacker Way part two of this blog, Mark Zuckerberg and the Hacker Way: Be Open and Build Social Value and also see HackerWay.org.