Tilting at Windmills, Picasso-style
There's the concession I've been waiting to hear. Requesting parties are routinely lambasted and villified as blackmailers when they demand that opponents turn over relevant and responsive ESI. How dare they ask for the evidence! The shocking cost flows less from volume and complexity than from mismanagement and ignorance.
The suggestion that America's plaintiffs' lawyers are weaving scabrous plots to exploit slovenly information management is paranoic and delusional. The only folks more clueless about ESI than the companies that hold it are the lawyers asking for it.
Folks, I admire talented, ethical plaintiff's lawyers. I see them as fighting for what's good and right on behalf of those who'd otherwise get chewed up in a system empowering the Dreiers, Madoffs and Cheneys. Be glad such knights errant are around, because if you or a loved one are injured, killed or simply ripped off, you're going to need someone who'll saddle up for you. Even if you are amongst the fortunate few who can afford to pay what top-notch hourly lawyers demand and the daunting expense of experts and discovery, I guarantee it'll chap your hind quarters to pay it. The contingent fee starts looking like a shining beacon on the hill.
But I digress.
My point is that as a consultant and master, I'm fortunate to work for firms on both sides of the docket. I get to see what both sides see and learn what they know. From that privileged perch, I can assure you that both corporate counsel and plaintiff's counsel continue to stumble in the dark. [I flinch as I write that for fear that to judge them so is to presume that I have all the knowledge they lack. I don't. The more I learn, the more I realize how much there is to know.]
But there is one nugget of wisdom I'll confidently share and ask that you take to heart: E-discovery is not as hard or as costly as we make it, and we make it harder and costlier by learning as little as we can.
I'm not afraid of lots of electronic data. I've narrowed the reason for my comfort down to three possibilities: A) I'm a damn fool; B) I have better tools and more hands-on experience and training than other lawyers or C) all of the above. The smart money's probably on C, but the fact is veteran litigators generally aren't afraid of a lot of information, if it's at their fingertips and they can dig right in.
When massive discovery meant mountains of bankers' boxes, we dug in. You opened a box, you "sampled" its content, assessed its relevance, decided whether to read or copy it and then did it again. Lather, rinse, repeat. We could tailor our level of exploration to the data. Sometimes you glanced at the first page, sometimes you skimmed; other times you pored over every word. Our "tools" were instantly customizable. We performed keyword, fuzzy and concept searches simultaneously. We deployed sophisticated conceptual organizational techniques called "making piles." It more-or-less worked. Justice got done.
But with ESI, it's not at our fingertips. We can't skim, glance or pore on the fly. It's ridiculously repetitious, and we don't know how to eliminate whole boxes by sampling. We can't "touch" the data in the same way or slice and dice it like before. It's like teaching someone to drive over the phone.
But, the forensic software applications and techniques I use allow me to move through those electronic bankers' boxes with something like the same ease I enjoyed with paper. I can glance and skim and pore on the fly. I can filter and sample. I can exclude great swaths of information to get down to the nub and make piles to come back to later. And I'm doing it natively, safely touching the data at the source without paying to convert it to paper or that crude, clumsy quasi-paper, TIFF images.
I'm not trying to sell you forensic software. It's not worth much without the training to use it, and it's too complex for the lawyer desktop. Instead, I'm saying that learning how to use these advanced tools--which wasn't all that difficult--has allowed me to reach out to the evidence in something like the way I always did, without adding much cost. If anything, it's faster and more thorough than the old way.
Why do so few of us seize this advantage?
When I lament that lawyers aren't doing enough to learn the technology, my friends chide me, "You aren't going to turn them into you, Craig." Well, why not? I'm no rocket scientist. I was a liberal arts major. I'm past fifty. And I really don't know as much as people give me credit for knowing. If other litigators could see how helpful and fascinating and fun it is to be able to dig into the data again, they might seek computer forensics training, too. In the time it would take them to get certified in scuba, they could start data diving. Then, they'd be better able to advise their enterprise clients how to find responsive information, frame smarter searches and reduce volume in sensible, affordable ways. In short, they could really help enterprise clients know what they know.
Pablo Picasso said, "I am always doing that which I cannot do, in order that I may learn how to do it." As you consider your New Year's resolutions--and especially if you contemplate having less to do in an economic downturn--make it your goal to take a computer forensics course in 2009. As a profession, let's promote the development of better EDD tools for lawyer desktops and of hands-on, technically-fluent electronic evidence instruction for law students and practitioners.
Happy Holidays, dear readers!