I was able to have a lengthy interview with one of my heroes, Craig Ball, a few months ago. This is part three of that interview (check out Part 1 here and Part 2 here). In this portion we discussed best practices for requesting and responding parties.
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: What eDiscovery tips do you have for requesting parties?
CB: The most important tip I’d offer to requesting parties is always specify the forms of production you seek. Within the Federal practice, the ability to designate the forms you seek is a gift, and a gift most haven’t opened for almost 10 years. It’s still common for requests to fail to specify the form of production. Mind you, I don’t mean the transfer medium of production; that is, I don’t mean requesting that the data be provided on a hard drive or DVDs. I mean that if you want Excel spreadsheets as Excel spreadsheets, you should say so. If you want Word documents as Word documents so that you see tracked changes and embedded comments, say so. If you want e-mail produced in forms that allow you to thread messages as conversations - something so important to understanding e-mail evidence - you’ve got to specify that you want email produced as e-mail. If you don’t, you’re going to end up getting whatever junk the other side wants to give you, and generally once you get something in one form, you’ll be hard pressed to get it reproduced in a functional native form. So, number one, always, always, always specify the forms of production you seek.
Number two is get rid of the boilerplate in your requests and think about what you really seek. “Any and all” is fine when “any and all” referred to the finite content of a single manila folder, but “any and all” doesn’t work well in the context of electronically stored information. Reinvent your requests and break the cycle of boilerplate objection. Stop trying to use a thesaurus-like definition of “document.” Stop trying to take requests that were drafted shortly after World War II and seek to tweak them to somehow be useful to get electronically stored information. Rethink what you’re trying to get, and ask for it with specificity. You’re much more likely to get what you want fishing with a spear than with a net.
Number three is use and prepare for the Rule 26f conference in Federal Court or whatever might be your state equivalent, if any. It’s frustrating to me how often there’s not even an agenda of topics or questions to be addressed circulated before these meetings. I did one yesterday morning where the opponents arrived with no one in tow who knew anything about the systems and sources. Their approach was to simply receive the questions that were posed and go off and deal with them, as though meet and confer carried an automatic “do-over” on the first one, where you can just waste everyone’s time and run up the lawyers’ tabs.
There were six lawyers on the call with meters running and the hour was devoted to just tell us what you’re interested in and we’ll get back to you. That’s not meet and confer. That’s meet and defer. Parties should arrive ready to negotiate standards and agreements and protocols; but, that process has been sacrificed on the altar of lawyer incompetence. What we need is more teeth in the process, and Judges who are more willing to say, “I’m going to shift the cost here; plus, next time you come, you’re going to have your meet and confer in my jury room, and if someone’s unprepared, come out and tell me and I’ll come in and listen.” Incompetent and unprepared counsel need to be a little more scared of Judges, and we need Judges who are not going to give a pass to bullshit anymore.
JK: What tips do you have for responding parties?
CB: Take a fresh look at native production. It will save your clients a lot of money if you’re willing to adapt, use newer tools, be open to newer techniques - particularly techniques of item identification beyond the embossed Bates number on the crystallized image. Learn enough lingo, enough of the fundamental concepts of electronic discovery to be able to be boots on the ground with regard to IT. What you will learn going to the IT department, walking the halls and pressing hard with the right kinds of questions to IT will be very different than what you will get if you work through intermediaries and allow IT to use their standard operating procedure of telling the lawyers anything to make them go away as quickly possible. I’ve never had a case where I have gone down to IT and walked the halls and poked around where I failed to find information at variance with what had been represented to me. Note that I said, “never.”
Invariably, I see things that they no longer see. The human brain is a very plastic organ, and it enables us to cease seeing the box of backup media we once meant to wipe and re-task, and stop seeing the hard drives that are sitting right on the shelf. We stop seeing the machines pulled from service that are piled in the corner, or the briefcase holding your old laptop. We stop seeing the old server, now literally gathering dust in a corner. All of these things are right under our noses, and invisible to those without new eyes to see them. It happens in every enterprise to the most diligent and honest IT personnel. They really forget what’s right in front of them, right at their desk. Their hand may be touching an old hard drive because they now use it for a coaster. So, you have to go down with fresh eyes and be nosy. You have to ask the second and the third question, and press for what you need to know; you’ve got to couch your questions differently.
When you go to IT and say, “You don’t have any of this stuff they’re asking for, do you?” the natural inclination is for IT to agree with you and say, “Yeah, I don’t think we have any of that.” Because it will make you go away. Remember, IT is thinking, “I have a full time job. I don’t have time for legal.” But if you say, “Gosh, it would really help us in this case - you could be the hero of this case - if you could find X.” That presents a whole new challenge to a technically-capable person. IT tend to be problem solvers; so, if you give them a problem to solve, they will. This is why so many lawyers are reluctant to bring IT to meet and confer because, where the inclination of the lawyer is to say we can’t do that, we won’t do that, the inclination of the IT - the problem solvers - is to say, “Yeah, we can probably figure out a way to do that.” Laugh at my naiveté, but we should all be about getting to the truth. We should all be about efficiency; yet, many of us are not. Many lawyers are skilled obstructionists, and expert at fostering delay. No surprise when you consider that many lawyers earn more by taking longer to do less.
JK: How can responding parties avoid over preservation? What principles can they apply to help them preserve the right amount?
CB: Over-preservation is generally the result of fear and lack of diligence. It’s easy for lawyers to protect their own butts by saying “keep everything” or by providing vague language and shifting the responsibility to a custodian. If the lawyer sending the hold notice took just a moment to think it through, it would be apparent that the custodian can’t do what’s asked. I have my students engaged in an exercise to draft legal holds and notices, and I can always tell the difference between those who relied somewhat slavishly on a form they found versus those that thought it through in the context of the work that we’ve done in class. Those who have gone to the published literature and grabbed an example invariably have a letter that tells custodians to preserve backup tapes, cease rotation of media, suspend routine purge and the like. But, you don’t send that to the HR department and expect them to know what to do. You’ve got to take a little time to think about who you’re putting under hold and you’ve got to personalize it to what they know to do, or tell them how to do it. These legal hold form notices are principally aspirational and fundamentally impractical.
Then, I’ve got to tell IT something different that I’ve told end users. End users look at content. IT doesn’t look at content. IT looks at aggregate data. So, when I tell IT to hold information about a subject, they don’t know how to do that. They don’t deal with data from a subjective, matter-related point-of-view. When I tell end-users to preserve the contents of backups, they don’t how to do that. They don’t deal with backups. They don’t touch that stuff. Heaven forbid they touched those machines; yet, lazy lawyers always try to pal off an omnibus notice that they ship out to everyone and say, “Well, I’ve done my job now. I’ve tossed the hot potato to everyone else. I’ll make them acknowledge receipt, so I can someday show the Judge that counsel bear no responsibility for the failings of my client because, “See, Your Honor? I told them to preserve everything.” That’s just wrong. It’s not competent.
Lawyers who serve omnibus notices make their client’s life harder, not easier. Such notices are just window dressing. You can’t say “Judge, I provided a written legal hold,” if it was a joke. It was a form, and not something I gave five minutes of thought. So, my advice is think about it. Manage risk. Don’t just palm that risk off to somebody else. A lawyer’s job is not to eliminate risk; it’s to make wise decisions, or more accurately, to advise the client so as to enable the client to make wise decisions about managing risk. You cannot do that if you don’t understand the matters about which you are advising your client. You have to do a little data mapping, learn what they have and what they use (and what they don’t have and what they don’t use) and be focused regarding the people that you task with preservation, the tasks you assign them and the scope of those tasks. You must give them practical advice they can act on, because the questions custodians need answered when you give them a legal hold notice is, “What the heck am I supposed to do? What are the resources afforded me to do it, and how am I supposed to do my job and do this too?” If your legal hold doesn’t answer those questions, you’ve failed your client.
JK: That’s great advice. Thank you so much, Craig.