I was able to have a lengthy interview with one of my heroes, Craig Ball, a few months ago. This is part two of that interview (check out Part 1 here). In this portion we discussed training on eDiscovery and how much attorneys can do themselves without calling in a vendor.
Craig is a Board Certified trial lawyer, eDiscovery expert, certified computer forensics examiner, law professor, and a prolific speaker and author. I first encountered Craig through his blog, Ball in Your Court, which provided me with a great arsenal of eDiscovery techniques to use in my employment cases, and I later spent a week learning from him at the Georgetown E-Discovery Academy
JK: Do you think the California Bar’s opinion on a lawyer’s duty of competence with regard to technology will push the profession in the right direction?
CB: I do, and I agree with the proposition that there are essential skills lawyers must possess to ethically accept cases implicating eDiscovery. You must either know the technology, associate someone who knows it, or hire a contractor who can help you. There is no fourth option, and that third one is an invitation to disaster, if you don’t know what to do…
But simply ordering lawyers to “get competent” isn’t enough. We need to pave roads and offer directions to help lawyers find their way. This is where the Bar associations fail us. They must do more. We all must do more.
JK: I’ve found that in eDiscovery CLEs, the audience tends to be more attentive because the material is different and because, many of us, even if we don’t think about it all the time, realize that eDiscovery is important.
CB: True, but for the most part, 30 minutes to an hour isn’t enough to talk about a discipline no less crucial than the law. Would anyone imagine that if non-lawyers attended an annual, one-hour course on the law, they’d emerge equipped to advise on legal matters?
If someone said, “Look, I don’t want to know all the law. I just want to learn all the law I need to know in one area, and you have just an hour to do it,” you’d laugh. You’d say, “It took three years of intense study and hard work, giving up every joy in my life in order to master the basics of law, and I didn’t become really competent until I practiced for years. How DARE you suggest that you could learn everything you need to know about this complex discipline in an hour?”
And yet we, as lawyers, expect that we’re going to learn the fundamentals of the technology necessary to do to eDiscovery in an annual one-hour CLE. It’s not going to happen.
It takes me three full days [at the Georgetown eDiscovery Academy] to build the foundation that I think a lawyer needs to be competent to speak to an IT person, to delve into the integrity of information, just to learn the core concepts and terminology of information technology. Even then, students are leaving the nest with very wet wings. The notion of teaching the fundamentals of eDiscovery in an hour is ridiculous.
JK: When was the Georgetown eDiscovery Academy started?
CB: It had two incarnations, and I was involved in both. The first one was about a decade ago, and it was basically a lot of long CLE / panel discussions. Granted, it was a marginally more technically-steeped version of the Advanced eDiscovery Institute, but it very quickly failed because look nobody really wants to sit through five days of talking head panelists saying, “Yeah, what she just said.”
I’m not a fan of CLE panel discussions. When you charge a solo presenter with the responsibility of instructing an audience, the buck stops there. It’s either good, or they shouldn’t be invited back. Whereas, with panel discussions, their disseminated responsibility means that individual preparation suffers. I’m not saying none are good - I’ve been to a few excellent panels - but they tend not to be the most efficient way to convey information to an audience in a consistent and useful arc.
At any rate, the original Academy died, and Larry Center, head of CLE for Georgetown Law, wanted to revive it because a boot camp for eDiscovery is a terrific idea. We need loads of them, and they need to be rigorous, skill-centric, and technical. So, Larry tapped Judge Paul Grimm to revive the Academy, and Judge Grimm asked me to help. Judge Facciola took a lead role and several other fine folks joined our small, dedicated faculty. The Academy is more like a NITA course. It’s skills training, and that’s its secret. Larry Center and the whole faculty share a commitment to protecting our positive differences from the pressures to become more like traditional CLE.
I’ve been gratified to see those who have come to the eDiscovery Academy who go on to take significant leadership roles in the scholarship and practice of electronic discovery. We are seeding the world with these new leaders - acolytes of practical, tech-savvy mindsets paired with genuine skills. Academy grads are ready for meet and confer; they understand the importance of transparency and cooperation.
My students are my legacy. They are how we, the faculty, can help change the world in our small way, and so I feel a great sense of pride when I see someone like you, Jeff, who is an Academy graduate making eDiscovery his career—though you certainly didn’t arrive as an unformed lump of clay that we molded. You knew a lot coming in.
JK: I’d been reading your blogs religiously, so I had a bit of a head start.
CB: Thank you. I’m frustrated that there aren’t a whole lot more people out there teaching eDiscovery. I should be marginalized a lot more than I am at this stage. I mean, we’ve had personal computers for 30-plus years. We’ve had almost 10 years of eDiscovery under the Federal Rules. We’re now on the second set of “new” eDiscovery rules. That we are still hard pressed to name a roster of folks who teach the technology facets to lawyers is, for me, an aspect of personal failure because I really wish that I’d succeeded in getting many more people interested and ready to teach. You can’t do eDiscovery without knowing the “e” part of it. I still feel like a voice in the wilderness on that point.
JK: What can be done? Is there a curriculum that could be proposed to Bar Associations?
CB: Yes, I believe so. I certainly spent a lot of time last year working with Judge Facciola on those very issues, striving to what he and I regard as kind of a core curriculum for eDiscovery. The question is “if we build it, will they come?” I’m not sure that we’re there. I think what California did is great, but more must offer the requisite two or three days of training—supplying that core curriculum.
I have a law school curriculum of 14 three-hour sessions, and I can prove from my own experience with students who have gone into practice that they emerge with a sense of both competence and, importantly, justified confidence that they know what they need to know to best their opponents and to best serve their clients when it comes to electronic evidence. I like my curriculum because technology is on par with law and practice, and that’s what’s missing from other programs.
Anybody who does this needs to have a comparable component of technology, and the reason you’re not seeing that is because most of the people teaching eDiscovery today are lawyers, so they are naturally most comfortable with legal issues, and less comfortable with the technology side. So, just as with the standard setters of the Bar, most who teach it tend to downplay the importance of the “e” in eDiscovery. Just as with the standard setters of the Bar, they’re never going to define competence in a way that leaves them outside of the circle of competence. It’s human nature. If you’re going to define what it means to be competent, you’re not going to foster a definition that says you aren’t competent. You’re going to try to remake the world in your image. For lawyers, that image is, “the technology isn’t my job.”
JK: What’s your advice for lawyers who know something about technology and who want to handle the eDiscovery side of their cases without hiring a vendor. Do you think it an acceptable thing for lawyers to handle eDiscovery themselves in certain cases?
CB: Absolutely, if they know what they’re doing and the economics make sense. But should lawyers be doing their own computer forensics and testifying about their findings? I think the answer to that is pretty obviously, no. Still, there a great deal of what we think of as eDiscovery that lawyers could do internally, as ministerial tasks. It behooves lawyers to be able to collect, protect, process, and search electronic information in the common forms they’ll receive from their small case clients. I can’t say to a client, “Why don’t you print out for me all the messaging and the emails that I need to see and bring them into me,” with the expectation that I will turn around and reproduce these to an opponent. I’m not going to be permitted to foist on them a load of unsearchable, incomplete, useless printouts (and TIFF images are printouts).
A savvy opponent will want to have an enhanced ability to recreate conversations in electronic communications and be able to use metadata values to search and report and make sense of data, to be able to assess its integrity when challenged and so forth. These were basic skills for lawyers when information was on paper. They don’t cease to be basic skills for lawyers just because the information has changed form. We can’t dumb down information at great expense and recreate crude searchability, obliging to buy antiquated and rather clumsy tools to be able to read information with the same facility we once brought to paper.
JK: Some lawyers and eDiscovery vendors try to discourage lawyers from handling eDiscovery on their own by warning that the lawyer will become a witness and will become disqualified from his or her own case. Do you think that’s a realistic concern or is it exaggerated?
CB: I think that as long as it is a fear that can be exploited, it will be exploited by those who profit from same. So, I’m not going to say it doesn’t happen; but I will say this: in the paper era, we distinguished ministerial tasks from expert tasks. If my client handed me a folder of evidence and I carried it back to my office, and had my assistant photocopy it or send it out to be photocopied, I never worried for a second whether my chain of custody and my evidence handling were going to be challenged such that the integrity of the paperwork would be somehow jeopardized because it went through me. It was understood that photocopying was a ministerial task.
That’s going to happen again, once we have more involvement by lawyers. So, we take away the “gotchas,” that is, the notion that only a cabal of the techno-initiated possessed of the magic incantations can copy a file off of a machine without altering it. The cloud is going to make that easier, along with the growing availability of simpler tools and techniques.
Instead, lawyers fear being the bumbling Mr. Magoo of eDiscovery. If they touch something, they’ll break it. That’s probably true with today’s lawyers because so many are incompetent, but it doesn’t have to be that way.
Casey Flaherty, former GC at Kia is well known for having fashioned a basic technology facility test for the lawyers who wanted to do work for Kia. They were asked to perform simple tasks: format a document in Word, create a spreadsheet; and I think Casey’s position was that no big firm lawyers ever passed that simple test. The lawyers simply didn’t know how to do the most basic tasks that the techno-initiated take for granted.
We will get to a point where it will be no big deal for clients to provide their lawyers with access to information stores and for those lawyers to search them, segregate them, put them through basic processes for production. This will comprise the routine ebb and flow of what lawyers do. Things will change, in the way that once lawyers didn’t touch keyboards and now they are oddballs if they don’t.
JK: Where, in your opinion, does routine eDiscovery work end and computer forensics begin such that a lawyer would need to bring in a certified expert?
CB: I think when you start going to anything that entails opinion evidence, you’ve crossed the line, and that places the line perfectly. Once you leave the realm of common experience or begin talking about features of the information that are not routinely available to users, about which users have not formed reasonable and reliable views of what they mean and the limits of their meanings, then I think you get to a place that demands a higher level of expertise and makes the lawyer a witness instead of an advocate.
Compare this with the medical field. What level of medical expertise to you need to apply a Band-Aid or antiseptic? We know the range of risk. On the other hand, when you start talking about making incisions or administering injections, there’s a point at which you’ve entered a realm of specialized knowledge and increased risk. In the absence of specialized knowledge, you will need either a learned intermediary or an expert. But, we won’t have trouble drawing those lines when we talk about rank-and-file information: email and texting, word processing documents, presentations, spreadsheets, simple databases, common software services in the cloud. I don’t think we’re going to have any trouble of drawing those lines reliably. When, for example, is it outside the realm of a lawyer’s technological capability today, with a client’s credentials, to download an archive of the client’s tweet history? What’s the practical risk?
JK: Does transparency factor into this issue?
CB: I certainly think that when you are transparent about what you are doing and more importantly what you are not doing at the preservation stage of eDiscovery, you are buying yourself a very effective insurance policy against belated criticism. One of the things Judges are pretty good about is requiring people to not sit on their rights. So, if I tell you I’m going to do A, B and C—but more importantly, I’m not going to preserve X, Y and Z, and I give you a reasonable period of time within which to mount your objection or seek the intervention of the Court, and you do essentially nothing, then complaining about it later won’t fly. For your opponent to come a year on and say “I can’t believe they didn’t preserve that that,” to feign surprise—like the police inspector in Casablanca who says, “Gambling – I cannot believe there’s gambling going on in here,” as he is handed his winnings— we can close this kind of posturing down by just being up front—and yet it’s one of the hardest things to ask from lawyers.
I will give you an example. In my work, it’s not unusual for requesting parties to bring me on to help them get what they’re looking for. One of the first things I will say to them is, “you’re demanding that the other side preserve this stuff, so, you have to do it too.” There’s this deer in the headlights moment of “wait a second, you mean, what I’m asking them to do I have to ask my clients to do?” Once we get past the sputter and I can persuade them that they must do it, they may muse, “if we just don’t talk about this stuff, maybe the other side may never notice we didn’t do it.” But that isn’t going to work: the other side has a play book, too. They are perfectly content for you to non-preserve and to put a great deal of emphasis on all the things they’re required to do, but they’re going to ask about what you did, sooner or later. They’re not going to forget to ask you if your clients have evidence.
This idea that if they just keep really quiet about all the stuff they haven’t done, that they won’t get caught, is ridiculous. But I hear that from very good, very experienced lawyers.
So yes, I do think a level of transparency is hugely important, and we should bring some of the same principles to discovery that we bring to picking juries. An experienced trial lawyer isn’t afraid of raising the weaknesses in his case before a venire panel. That’s when you want to see and defuse those negatives. That’s when you want people to raise their hands and say that they could never fairly judge someone who did thus-and-so.
You want all the flies in the ointment right from the start so that you can choose those who are not unfairly prejudiced. The same goes with the flies on your case in preservation and eDiscovery. If you’ve got problems, the idea that if you just don’t talk about them is insane. Defuse them up front. Get your bad stuff out there. Take its power away and resolve it early because you can fix these things at much lower costs and with many fewer consequences if you do it early. But I’m preaching to the choir here, and these points fall on deaf ears among experienced trial lawyers who believe you reveal nothing to the other side, you take no prisoners, and you scorch the earth as you march.
JK: Many defense attorneys haven’t historically made a practice of asking about the plaintiff’s preservation steps and haven’t traditionally worked very hard to get eDiscovery from plaintiffs. This is just from my limited personal experience, but in the few cases where I was representing a business who had been sued by an individual, I found it to be a very powerful technique to request eDiscovery from the Plaintiff and, in fact, the one time I ever actually filed a spoliation motion was against an individual who had deleted a large number of text messages. I think the days are coming when defense firms will get wiser and will begin to exploit a plaintiff’s failure to preserve.
CB: Absolutely. It’s the asymmetric discovery problem. “We, Goliath, have so much data. You have so little, David. It’s so easy for you to throw rocks at us.” Yes, but the thing is, it works both ways. Goliath may have so much and so be challenged to manage it all; but, David has little in the way of sophistication and resources, and often the cobbler’s children have no shoes when it comes to one’s own data. So, everyone is at risk from inaction, not just Goliaths. Everyone is unbalanced when it comes to how we deal with electronically stored information. Thus, the fantasy that Plaintiff’s lawyers, in particular, indulge in, “Oh my people don’t have anything, so I don’t have to put them on hold,” carries disastrous consequences.
JK: David usually has some ill-considered things on his iPhone or Facebook account conversation history.
CB: Yeah, you hit on the thing that is uppermost in my mind for the last few weeks, maybe few months, and that’s the challenge of mobile. You know, we indulge this wonderful delusion that we don’t have to deal with people’s phones and tablets because, “Oh, that stuff’s somewhere else. We’re going to get it from some other source.” That just isn’t true. When you begin to look at the extent to which handheld, mobile devices have insinuated themselves into our lives, the number of applications that reside only on mobile devices, the number of things that cannot be moved off mobile devices with ease and reliability and that are not replicated in other enterprise collections routinely collected, we’re at a new crisis point with regard to mobile, and I cannot seem to awaken many to that. I’m not seeing much afoot to provide inexpensive, reliable, consistent acquisition of the content of mobile information to be able to process it into standard platforms for examination.
JK: I was recently talking with a group of lawyers about this and used as an example an app that’s available on the iPhone called Moves. If you have Moves installed on your iPhone, it records every place you go, and you can later pull up a particular day and actually see your path of movements on a map background together with the times you were at various places. It also allows the user to do things like record their mood at any given time: there’s a slider that you can drag all the way up if you’re happy or drag it down if you’re feeling bad, and I believe you can also record the food that you’ve eaten. It basically helps you record everything that’s happening in your life, and obviously this information will be hugely probative in a case involving claims of emotional distress or in a personal injury case involving reduced mobility. The Moves app might show that you were riding your bicycle around or going jogging (and it actually does detect when you’re riding a bike or running). So, thinking of eDiscovery implications, I went to the Moves website to try and find out how you could export data from Moves and, at least at that time, the site said sorry we don’t support exports, but we’re working on it.
CB: That’s a terrific example. I mean, “Moves” is one of those things that’s going to literally track every step and where you went and so forth and the timing of your activity. I foresee a day when a Defendant in a personal injury case asks the Court to order the Plaintiff to wear a monitoring device that will, you know, see how physically active they really are. When you order an Independent Medical Exam, when someone’s claiming that they are physically limited, mind you, it might prompt somebody to take it easy for a week or two or however long they have to wear the thing, but most of us would forget. Most of us would continue to do stuff that we’re doing and particularly if we’re not being accurate in recounting our limitations. I take your point to be that Moves is something that could be decisive in a case and that is an absolutely very probative. Perhaps someone is claiming to be physically disabled, but walked 9,824 steps, climbed this many stairs, visited this many gyms and so forth! They’re clearly not as disabled as they claim. But if we can’t get that data off of the device and be able to present it to a decision maker as evidence, we are lost.
And yet no one seems to care that this amazing stream of information, this information that literally will make or break a case in many instances is being studiously ignored. It’s just frustrating to me that so few even think about this stuff. Everything that Moves is doing is already being generated by the phone. Moves is simply taking the information from the phone and interpolating it in a more intelligible and useful way. The data is being collected by the phone all the time.
JK: It brings up this scenario where cases would never need to be tried if lawyers were capable of extracting the right information, which could determine with absolute certainty what happened in the past and who is telling the truth and who is not.
CB: Absolutely. We are not far off of the point where people will routinely carry applications that will record essentially everything they see and everything they say and hear. When I say that to people, they kind of instantly say, “Oh, no way. That’s not going to happen.” You know, but then I look at police forces that have their cops on the beat wearing Body Cam device recorders that much like the dash cams on the cruisers in the past are now recording everything that the policeman does and says and hears and sees in the interaction with the public. I think we’re going to see that kind of thing much more routinely, and I think we’re going to see it in taxis and trucks and all manner of vehicles. I think a lot of people don’t realize that a lot of vehicles are already carrying quite a complement of information that does track their speed, braking and restraint usage. I foresee a time when the cameras on a car are active all the time and there are cameras all around a car, such that information is routinely being recorded. Can you imagine what the personal injury business would be like if every collision were recorded in real time video? Think of how easy it would be to resolve liability in cases if more of that information was tracked all the time.
JK: Perhaps the carrier would have an algorithm that would automate sending checks whenever any of its insureds was negligent.
CB: I’m not sure we’re going to get to that point! Certainly we’ve seen that the damage aspects of it can be made that simple. You pick where you want your car repaired, and you bring your car in, and the insurance carrier deals directly with the repair shop. You’re in and out. Certainly in property damage cases, the ability to streamline that has gotten much, much better. As we move into personal injury, it’s going to become easier to establish liability, but we’ll still have to deal certain intangibles like damages.