Are you a Thinker, Implementer or Doer?

There are different types of people in business. Different personalities, skill sets, and experiences. Getting the right combination of these differences on any team is a challenge, particularly in the legal profession and associated disciplines. There are different schools of thought when describing the makeup of a successful team. Some speak of Implementers and Enablers, while others use the terms Thinkers and Doers, but for the purposes of this discussion let’s take a look at Thinkers, Implementers and Doers; the three components which, in my opinion, form the nucleus of the perfect Project Team.

Skills on any given team fall into at least 2 categories – Thinkers and Doers. Our implementers are the planning bridge between the Thinkers and the Doers. A critical component missing on many teams.  To create a solid Project Team, such as the type that would manage an E-Discovery matter, these three elements are crucial to success.

Thinkers are the personalities open to new concepts and ideas. Thinkers are the thought leaders, constantly trying to improve or change the way things are done. They are creative instigators who are always experimenting. A thinker’s strengths are their willingness to experiment, take risks and change. They strive to invent new processes, products or services. One weakness of some Thinkers is that they often don't understand all the nuts and bolts of what it takes to implement processes and the issues required to bring these new concepts to market, or to implement them once they are sold. On an E-Discovery Project Team these people would act as the ESI Consultant or Solution architect; designing the process for a project.

“Doers” are the folks that “Get er done”. A Doer recognizes an efficient and standardized process. They are the people with the functional knowledge, and they often do not appreciate a Thinker tinkering with a process and introducing change. Doers can do without change finding change disruptive to the existing processes, particularly if a process concept has not been tested and proven. With a Doer, something is either black or white with no shades of grey. On an E-Discovery Project Team these people would act as the Project Coordinators or Technician; the people who perform the tasks associated with any given project (i.e. acquisition, processing, and production).

These two personality types appear to be in conflict with one another and, although conflict, change and improvement can be good, to make these two personalities work, a third personality is needed - an equalizer if you would. Enter The Implementer!

The Implementer works with the thinkers to shape, refine, prototype and design and a process. The implementer then works with the Doer, the one that will perform the work, to resource and implement the process. The Implementer on our perfect Project Team is the Project Manager.

Together, Thinker’s, Implementers and Doers work together to bring a project to a successful outcome.

Does your team/organization have the right mix with the proper roles defined? What role do you play?

Database Discovery - What's all the fuss?

Today I read another great article in LTN -

Database Discovery Is Dubious, but Unavoidable. As I read the article and quotes from our friends over at FTI Consulting, the technologist in me could relate. "There are still types of evidence that lawyers prefer to ignore and hope will go away, the way e-mail discovery was ten years ago," says FTI's Rob Brunner.

The article goes on to say:

"Like the mass of ice below an iceberg's waterline, the amount of structured data is often the bulk of corporate data, but is rarely seen. According to the Data Warehousing Institute, a technology research firm, approximately 47 percent of corporate data is structured in nature, compared to 31 percent of unstructured data. (The remaining 22 percent was described as semi-structured data.)"

I too have been through many complex exercises with all manner of structured data. In some cases our team writing complex applications and processes to preserve, then search, review and produce relevant information where it is needed. Like e-mail before it, the discovery of structured data is poised to add yet another billion dollars to the eDiscovery pipeline. Or will it? Slowly the years of discovery and trial experience fights back the technologist interested in all things complex with problems to solve. Wait a second! I revisit the title of the article - Database Discovery Is Dubious, but Unavoidable. Unavoidable? How often is structured data even relevant? If relevant, what value will those data have within the context of the actual facts underlying the dispute? Before we start building fleets of technologists and consultants dedicated to handling petabytes of structured data raining from the sky, we might want to consider the percent of that 47 percent of those corporate data that is actually useful outside of making widgets. In most cases, large and small, do you really need to preserve, collect, search and review every transaction in an enterprise accounting or procurement system, as examples? Preservation can be easily handled in most cases by simply taking backups most enterprises already have in place. If not, create one. Is it the entire SharePoint system that needs to be preserved and searched? Or, is it just documents for specific custodians? Do the Metadata records associated with each document even have relevant information? Maybe you simply need to review the reports easily generated by most “structured” enterprise systems, and targeted at the specific information of interest. Before embarking upon a big expensive effort to pull information from a system, whether simple MS Access databases, or complex relational Oracle based data warehouses, doesn't it first make sense to inquire about how the witnesses use the information? After all, we call data "structured" for a reason. Considering the amount of data collected each day for litigation, it is rare when there is cost justified reason to rebuild ways to query and report information outside its intended use. The way the information would have been used during whatever conduct gave rise to the litigation/investigation. Isn't the better approach to target those "documents" lawyers will use rather than large sets of mostly useless bits of data that will never see light of day in a deposition, much less a court room? The recent trend toward having the parties sit down with their respective technology experts is encouraging. Talk to the opposition and decide jointly what approach to take. If you can’t decide, the court will decide for you and that decision will weight cost vs. benefit. Far too much time, money and intellectual capital is spent today on the unimportant.

That is not to say there are not times when complex structured workflows are necessary. We have been there - done that - but those instances in the big scheme of things are rare. Brunner says "Unfortunately, e-discovery vendors have been slow to respond to this issue" and he is right. The reason, however, is not because we have not figured it out – some of us have. The reason there are not more widespread and standardized approaches is because there is a lack of demand.  That lack of demand, I submit, is not because data is necessarily being ignored. It just does not come up during discovery.  When it does, the relevance is usually marginal and the cost of obtaining the information is not justified when weighed against the benefit. When the need does arise, hopefully a “trusted advisor” will provide the right advice and ask the right questions before you act. Database discovery today is largely avoidable.  So, maybe the more appropriate name for the article should be:  Database Discovery Is Dubious, and Sometimes Unavoidable.There may not ever be a structured data equivalent to the manual "The Simple Solution to the Rubik's Cube", but we can look first at simple solutions to what does not have to be a complex problem.

Live by The Sword. Die by the Sword!

Today, like most days, the first thing I do...umm....the second thing I do is look at my Blackberry to find Blawgletter's daily email and post. The email strategically sent so that it will arrive in my inbox in the top 10 of the reading batting order. Well done Barnett!

Today’s Blawgletter post tells us of yesterday's 9th Circuit decision in Ahanchian v. Xenon Pictures, Inc., 08-56667, slip op. at 18151-52 (9th Cir. Nov. 3, 2010). In that opnion, the Ninth Circuit took great pains to express considerable dislike for counsel's role in “goading” a district judge into “Kafkaesque” rulings.
The opinion, according to Blawgletter, held that “the district court abused its discretion in denying a request for more time and erred in granting summary judgment (and awarding almost $250,000 in attorney's fees!) against the plaintiff, who claimed to have authored skits that appeared a National Lampoon's TV show.” Of the opinion, Blawgletter observes:

“This sort of thing happens, on both sides of the docket. The offending lawyers may think that crossing the line into perfidy against the profession won't hurt them, at least not in the short term and possibly not ever. And that their client will pat them on the back for pulling out the brass knuckles. And, who knows, that maybe they'll get a reputation for hardball and thus win the fear of opponents and admiration of potential clients.
That stinks. We, lawyers and judges alike, have to police ourselves. And so Blawgletter sincerely thanks and earnestly congratulates the panel for letting the rest of us know that we have brothers at the bar who have sinned against us all.”

This commentator, as regular readers know, has seen more than his fare share of discovery battles – many reaching the litigation equivalent of nuclear warfare. In the first five years of my career alone I had the great honor to witness first hand dozens and dozens of trials, and all manner of lawyer styles. When I left public service to join my first law firm, I was surprised at the level of civility demonstrated by lawyers on both sides in those high-stakes cases. Are these lawyers being advocates for their clients, I thought? I soon learned that when you have a case, you dash to the courtroom as quickly as possible. Maybe that’s why I stayed with law firms for almost 20 years.  Discovery disputes not only get in the way, they signal weakness, and not just to the opposition. Judges (like those on the 9th Circuit) are just flat sick of aggressive discovery tactics targeted at delay and shifting focus from the facts. That is not to say that there are not genuine discovery disputes - there are. This commentator has assisted in countless disputes where one side or the other is hiding the ball. However, as Blawgletter observes, overzealous advocacy is far too common.

Unfortunately, eDiscovery is a fertile ground for these discovery disputes on a very large scale costing hundreds of thousands, sometimes millions of dollars to fight. If you find yourself in one of these battles, at least remember your ethical obligation (directly or, in my case indirectly) to be civil and professional. You never know, giving your opposition the benefit of the doubt may just bring rewards. I can tell you based on experience, it will with the Judge.  If you choose the sword, and it may well be unavoidable, make sure you’re willing to die by it.  Warfare is always a two way street.

eDiscovery - So easy a Caveman can do it, right?



I'm a Caveman, that's the way I think.



Many may remember the late Phil Hartman playing the lawyer caveman on SNL back in the 80's. The running gag was that Keyrock, a unthawed caveman who went to law school, would speak in a highly articulate and smoothly self-assured manner to a jury or an audience about how things in the modern world supposedly "frighten and confuse" him. He would then list several things that confounded him about modern life or the natural world, such as: "When I see a solar eclipse, like the one I went to last year in Hawaii, I think 'Oh no! Is the moon eating the sun?' I don't know. Because I'm a caveman -- that's the way I think." This pronouncement would seem ironic, coming from someone who had, for example, just ended a brisk cell phone conversation, or indeed attended law school. Keyrock would always finish a disquisition, however, by asserting in a burst of righteousness that nevertheless "There is one thing I DO know..." -- namely, that his client is either innocent, or that he is entitled to several million dollars or more in both compensatory and punitive damages for an injury. The jury or counsel is invariably swayed by Keyrock's argument, except every time the Judge announces the verdict in his favor, Keyrock is distracted by some other event like watching a Knicks game on his portable TV ("I'm sorry, Your Honor, I was distracted by the tiny people in this magic box"), or by a cell phone call, and the verdict has to be repeated.

This gag was particularly funny to me because I’ve had the great pleasure to see and assist many, many lawyers in action in the courtroom. There were and still are lawyers that use similar tactics with both judges and juries. And, it worked! I remember one very old lawyer in particular back in the 80’s that came off as an old country lawyer that did not know much. He was easily overwhelmed by those “Big City Lawyers” who pushed complex issue after complex issue forward. Each time he would grab the issue, dumb it down for the jury and then twist the opposition's complex explanation to suit his client’s position. I also saw many lawyers try similar tactics, only to fail miserably. They just came off as, well, stupid.

eDiscovery can be a complex undertaking rife with considerable risk, and enormous expense. It does not have to be complex, nor expensive if you have the right plan. A plan that is tried and true, defensible and easy to understand. I see too many attorneys these days that either try to be the caveman when it comes to eDiscovery, pass the task off to an associate with no experience, or just go it alone rather than bringing someone in that not only understands the process, but has been through every conceivable situation. Don’t be the caveman. eDiscovery is not so easy a caveman can do it. At least not without a standardized process and the right technology and help.

Should Lawyers Play Nice in E-Discovery?

 Brad Jenkins over at Trial Solutions pointed out a great LTN article today - E-Discovery: A Litigator's Perspective by David B. Mankuta. A great read about some very high level things that can be done to avoid some very basic pitfalls.  The upshot is that eDiscovery is expensive and one of the causes is a lack of cooperation among lawyers.  Mankuta states:

"Over the past 10 months, our client invested several hundred thousand dollars in the e-discovery process made more complicated by a lack of cooperation by the defendants."

Click on the "lack of cooperation" link and you find another good article, and the title of this post - Should Lawyers Play Nice in E-Discovery? by Jason Cruse. This one from February 2009. That article outlined a panel discussion by many thought leaders of the legal profession, including Richard Braman, founder of the Sedona Conference, Arthur Miller, a respected scholar at Harvard Law, Supreme Court Justice Stephen Breyer and various federal judges, executives and lawyers.  The panel discussion was heated at times.  The academics like Braman and Miller pointed out that lawyers are taught in law school cooperation and collaboration.  Practicing lawyers on the panel voiced loudly that is not reality and lawyers as advocates use all the tools at their disposal, including not cooperating in discovery.  Braman was shocked later stating:

"That experience stuck with me, and I decided it was time to put a stake in the ground and say that unless we find a way to solve the dispute over discovery, the legal system will in fact break."

That revaluation lead to the Sedona conference Cooperation Proclamation.  Have you read it?  There are numerous articles since the proclamation suggesting that not much has changed.  The reasons more collaboration does not take place is nothing more than strategy more often than not.  Those that "blame the lawyers" and think that discovery disputes will not always be a part of litigation strategy are simply naive and have not spent time in the trenches.  As an advocate, a lawyer has a duty to use whatever tools they have within ethical and legal bounds to represent their client.  Most follow the rules and if not clear, they interpute them.  That's their job, right?  This is not a new issue brought on by ESI.  Just magnified today more than it has in the "paper days".  Almost three decades ago when I was a court coordinator in Harris County, Texas, the young judge I was working for at the time had a brilliant idea.  He grew so weary of discovery disputes that one day he came to me and said, and I am paraphrasing of course:

"I want you to start screening the discovery docket.  Don't make calls when motions are filed", he said.  "Rather, wait until they come down for the hearing.  When they arrive, you ask them one question.  Have you visited face to face with each other and tried to work out the dispute?   If the answer is no, send them into the hallway and ask them to talk.  Tell them I am in a very foul mood today and that if they can't work out the problem, you can bet one of them won't be happy with my decision." 

 There were local rules in place at the time, mind you, that required certification that the parties had attempted to work out the dispute. The certification stated almost universally that they had tried and that no call was returned, or they for whatever reason could not reach the opposition.  At the time we had a docket of over 3,000 cases and 1.5 days of each week dedicated to discovery disputes.  I asked the question each Monday and most of the time the answer was no.  Into the hallway they went, and most of the time they return with an agreement and the motion was withdrawn.  Of course the word got out and within 3 months our discovery motions docket was reduced to just 1/2 day each week.  That judge did somewhat of the same thing for trials - sent the parties to mediation.  By the time the judge left the bench 4 years later, our docket was down to just 800 cases. 
Sure, there are similar rules in place now in many jurisdictions, but we need more than rules requiring cooperation.  Before things change, there must be very specific standards with teeth that lawyers understand.  In the paper days, form of production for example was simple - paper is paper and a copy is a copy.  Today, the game is more complex with ESI.  It is difficult to play a game where the rules are not clear.  The rules on eDiscovery are either non-existent, or simply absent and case law is all over the map.  Until there are very specific rules, careful planning with experienced experts must rule the day.  What is your approach to ESI in litigation?  Do you develop a plan with the opposition that includes significant detail written to avoid disputes?

There are NO "Industry Standards" in the eDiscovery Space!!!

Yes, that is right - there are no standards. I catch myself saying "industry standard" this or "industry standard" that, when in fact not only are there no eDiscovery standards, there is no eDiscovery standard setting body. There are standards from other industries that we barrow and adopt voluntarily as quasi standards. The Reference Data Set (RDS), for example, is a list of the 28 million or so file signatures in the The National Software Reference Library (NSRL), which is maintained by The National Institute of Standards and Technology (NIST). The NSRL is designed to collect software from various sources and incorporate file profiles computed from the NIST approved cryptographic hash algorithm within the RDS of information and maintained by NIST. The RDS is used by law enforcement, government, and industry organizations to exclude files on a computer by matching file profiles in the RDS. We know this as the NIST list and in this industry and use the NIST list to remove "system" and related files that have no value in our world.

But wait!

There are multiple hash algorithms, so which one do we use? As many in this space know, most eDiscovery applications use the MD5 hash algorithm. There are also other algorithms because in 1996, cryptographers began to find flaws in the MD5 computation, and began recommending the SHA-1 designated by the NSA. Flaws found in MD5 hash algorithm reached the point that in 2007 the U. S. Department of Homeland Security said MD5 "should be considered cryptographically broken and unsuitable for further use". Yet here are still using a broken "standard". Flaws have also been found in SH-1 and SH-2, by the way, but that is an article for another day.
So, what about the Sedona Conference, EDRM and other such organizations that promote "standards"? Those organizations provide guidance and are not setting "industry standards". The ONLY organization in the legal space that can dictate standards that everyone must follow are the US Supreme Court and the various State Supreme courts. Those governmental entities set standards each year through amendments to the rules of evidence and rules of procedure. So far, there has been little to no guidance from either level of government directed specifically at eDiscovery standards. So what’s the point? We will not have standards such as a standard form of production, as an example, until the courts write standards into the rules. That won’t happen until the rules making leadership of the ABA and various State Bars get involved and make it happen. Please, get involved!!! We need standards. Until then, let's drop use of the term "industry standard" and instead refer to "best practices", shall we?

Lawyers need help too!

Apparently when you turn 50, you are considered an “old goat” and you begin to reminisce about your life and become nostalgic. Well, it happened to me this year – the turning 50 part. Well, ok, maybe a bit of the reminiscing and nostalgia too. There is one other thing that happens as well. Because you’re considered an “old goat”, um, experienced, you can get away being direct. In your 30’s and 40’s direct is mistaken as arrogant. Well, I’m about to be direct to my lawyer friends. While I am not a lawyer, I’ve supported lawyers literally my entire adult life, so I’ve earned the right to be direct about the following.

Stop it!

Stop going to meet and confers with just a legal pad, a redwell of briefs, a pen and no plan. Those things you take are important, but you’re forgetting the plan. Stop entering into discovery agreements without considering ESI and getting the proper help and advice. Stop tiffing and printing everything because you don’t want to learn technology (or let your staff use it) - that approach is expensive. Don’t argue with your staff on that point, that war is lost. You don’t have to know technology. As one great litigator said to me recently:

"I don’t know the first thing about technology. I am a litigator and a good one (he is). I have folks on my staff to push to me what I need. I understand that they need technology. I understand there are associated costs. My staff will locate the technology expert appropriate for this matter."

Stop with the discovery disputes over ESI - you’re upsetting the courts. They are unhappy and it’s making my job harder. Yes, maybe I make more money when you fight and mess things up, but I don’t enjoy it as much as I do when I help you plan well and help you win. You’ve seen the opinions written by judges upset over disputes about ESI mishaps, right? If you haven’t, comment here and I’ll hook you up with Roland Bernier or some other fellow lawyer who reads them every day. Stop throwing search terms against the wall to see what sticks with no testing or plan what-so-ever. You’re messing it up for those who have a plan. Stop making the discovery process way harder than it needs to be. Stop thinking that the more you produce, the more likely it is the opposition won’t find the smoking gun. Technology is going to find it. More importantly, stop making discovery more expensive than it needs to be. Yes, those of us on the “service provider” side must take some cost responsibility, and most of us do take that responsibility very seriously, but stop saying it’s our entire fault. A good friend recently said:

“You eDiscovery folks really built an industry out of nothing."

To which I responded:

“Yes sir seems so, but didn’t lawyers do so as well? Sure, it was centuries ago, but at some point in the past there were no lawyers. I just happen to have been present when computers hit your desk and had the good sense to see what was coming and learn all that I could.”

The point he really was trying to make is that his clients now have to pay for some new service. You do need another expert now. But, you need some expert on every case, right? Those guys/girls don’t work for free. Lawyers take pride in the education and many years of experience.

Please, for all that is holy, contact your litigation support department early and often. If you don’t have one, contact someone in the industry that knows what they are doing and can help you. Many lawyers take pride in their technical prowess and I applaud those that are savvy. However, unless it is your sole function to keep up with eDiscovery, don’t try it alone. Do what you do best – lawyer. Don’t wait until you are in the throes of battle either. Don’t think ESI does not apply to your case – it is present in virtually every case. If you don’t think so, chances are real good you’ve missed something. Yes, those technical professionals are likely going to cost something and you or your clients are going to have to pay for their services. If you don’t, you will eventually regret your choice. Sure, maybe not on this case. Maybe not on the next, but eventually you’re going to find yourself (or your client) spending way more than you might have spent had you engaged the right help at the right time. Be careful out there. Discovery can be a jungle, or a beach - your choice and you’re in control.