Every December I do a Recent Developments in Law Office Management and Technology program for the Oklahoma Bar Association's two-day Recent Developments CLE. For 2012 the big story in legal technology had to be the rapid changes in e-discovery and predictive coding. Predictive coding means searching documents using algorithms to locate relevant documents rather than a lawyer reading each document. The best predictive coding practices have lawyers intensely involved in the process and use sampling and testing to determine how well the algorithms are working. See the Wall Street Journal's Law blog's post After Court Decisions, Clients Mull Swapping Lawyers for Machines for more detail. (This is also an example of the kind of headline that makes many lawyers think this must be a bad thing.)
Changes in the law generally happen slowly. So it is noteworthy that the first opinion requiring a predictive coding protocol for document review in a case where both sides generally agreed it was required happened early in 2012 and later in the year we saw a order issued by another court telling the parties they had to show case if they didn't want to use predictive coding during discovery in a case. That is rapid change.
Recently an ABA Journal article was published with the title Lawyer for E-Discovery Company Predicts Predictive Coding Will Become an Ethical Obligation. Some attacked the obvious bias of the source in comments to the article and others predicted ethical and malpractice horrors ahead for any lawyer who dared "outsource" their duties to machines or non-lawyers. There's a bit of "protect our turf" bias in those comments as well.
I don't really see predictive coding becoming an ethical requirement only because I see it gaining more acceptance as a business requirement long before ethics rule-making bodies have a chance to consider it.
There are so many emails generated every minute in businesses that there is no way to avoid this. Suppose a lawyer has to review two million emails to decide what is to be produced in discovery or a law firm receives one million emails in response to a discovery request. Do the naysayers really believe that the only ethical and practical way to approach this is to hire teams of lawyers to manually read each email? Predictive coding is simply a tool that lawyers and courts will use to deal with the massive amount of information before them. Judges will learn more about searching and sampling. It will be a change, but a necessary one. And, thankfully, most cases will not involve millions of emails.
Jim Calloway and Sharon Nelson discuss this important topic and the ethical implications of EDD outsourcing in the October Edition of their Digital Edge: Lawyers and Technology podcast. Take a few minutes to listen to their comments on Outsourcing EDD Review Abroad in this 12th edition of The Digital Edge: Lawyers and Technology.
At our 2008 OBA Solo and Small Firm Conference, Judge Gary Dean of Prior, OK (who was chair of the 1st OBA Solo and Small Firm Conference before rising to the bench) stumped our panel of experts with this inquiry: " I am seeking a reasonably simple (and inexpensive) device to be able to download and print cell phone messages and call logs. Hopefully something simple enough for a law enforcement officer with reasonable computer skills to use. In domestic violence and protective order cases which I handle, I am seeing an ever increasing volume of threats and harassment by cell text messages. In domestic protective order cases the messages have been kept and are frequently shown to me. The problem is preservation for possible later court use."
As a veteran of many Q & A panels as a so-called expert, I've had to do this drill a couple of times. You have no idea whatsoever and you look hopefully at your co-panelists, only to see them looking hopefully back at you. Then the lawyer training for candor kicks in (especially since a judge asked) and you hear "I have no clue" escaping from your lips. The good judge is undeterred, however, and wonders if we can find out.
The problem with using Internet research for such a query is that many products promise but do not deliver and, generally speaking, the terms "inexpensive" and "electronic evidence preservation" don't even go on the same piece of paper, much less in the same sentence.
So I decided to look for the answer, frankly expecting that the answer would be "Sure, the ACME Phone Slurper 4000 will do a great job on this for only $11,995 and six month's training to certify the operator."
I queried my friend John Simek, figuring he could give me a list of devices costing five figures that would get the judge off my back. John, as many readers know, is the vice-president of Sensei Enterprises, Inc., a computer forensics firm. He has a list of credentials a mile long.
With his permission, I am passing along his response to my readers.
"There is really only one 'sure fire' way to document text messages, call logs, etc. from ALL cell phones," John says. "That way is to take pictures of the actual screen of the phone while the user accesses the various functions. We use a device called Project-a-Phone that is available from Paraben. It only costs $295, which is a bargain for documenting cell phone contents. We also have several multi-thousand dollar software/hardware combinations to get the cell phone data. However, no single solution gets all of the data from EVERY cell phone."
"To compound the problem, we have several hardware kits that contain hundreds of data cables to connect to the cell phone. Sometimes a particular model phone is not supported by one vendor so we have to try another one of our kits to see if we have the data cable and ability to extract information. The beauty of the Project-a-Phone is that you don’t need any data cables, which means it works with every phone. You are just taking a picture of the screen. This means that you are only capturing (documenting) the logical data and cannot retrieve any deleted information that may exist. As with anybody taking crime scene photos, there needs to be a chain of custody and, perhaps, a statement from the examiner that they are the ones who retrieved the data on a particular date while observing cell phone model XXX and serial number YYY-ZZZ. I think you get the picture! (bad pun)."
That was all probably elementary to a computer forensics professional, but I found it fascinating! I hope you found it interesting.
Attorney Ralph Losey publishes the e-Discovery Team Blog. He has posted over 100 items there in the last 18 months. Of particular note is his most recent post where he mentions how useful the search features of his sites are and then provides summaries of his 31 "favorite" e-Discovery cases complete with links to the complete opinions. What a great resource!
I got a kick out of Martin v. Northwestern Mutual Life Insurance Company, 2006 WL 148991 (M.D Fla. Jan. 19, 2006) where the court held ignorance of technology is no excuse for failing to comply with e-discovery requests. The District Court held that the attorney’s “claim that he is so computer illiterate that he could not comply with production is frankly ludicrous.”
My friend Dennis Kennedy has posted his annual predictions on LLRX.com. This year's edition is called "Eight Legal Technology Trends for 2008 – Good Times, Bad Times or Hard Times in Legal Tech?" I'll specifically note numbers 1 and 2 and let you follow the link for the rest.
Last night was one of my more fun and unusual presentations. At the Hudson-Hall-Wheaton chapter meeting of the American Inns of Court in Tulsa, they combined electronic data discovery with a Saturday Night Live theme. So after giving a serious talk on EDD, I sat down to be interviewed by the Church Lady, who soon brought up the Evil One's role in EDD. I was followed by Hanz and Franz.
Hanz was played by none other than the Honorable Sam A. Joyner, Magistrate Judge of the United States District Court for the Northern District of Oklahoma. He made us aware of an EDD resource that I had not seen before, Guidelines for Discovery of Electronically Stored Information from the U.S. District Court for the District of Kansas. This three page PDF file is a truly great summary of counsel's obligations with regard to EDD. Since it is only three pages, I suggest it is worth everyone's time to download and read, even if you are stil trying to convince yourself that you can avoid EDD and ESI for the reminder of your career.
Law.com has released the EDD Update blog, which will focus on "electronic data discovery news and analysis." Given the number of well-known pundits and experts that have signed on as authors, the endeavor seems destined to be a success. For a good example of the content you will find there, check out Craig Ball's common-sense post on getting electronic evidence admitted in court.
If you do not have much to do the next few days, here's one way to fill up your spare time. Check out this collection: the Richmond Journal of Law and Technology (JOLT) E-Discovery Archives. Several weeks ago the Spring, 2007 issue of the online law journal, which is focused solely on Electronic Discovery, was added to the archives.
One of the student editors informed me of the publication."Our publication is a student-run law journal housed at the University of Richmond School of Law. JOLT was first published in 1995 as the first exclusively on-line law journal and has continued to publish articles on the intersection of law and technology for over ten years. JOLT is available online, free of charge, to anyone who visits our website....Each year, we publish an issue dedicated to the emerging issues in Electronic Discovery. The most recent annual survey focuses on the recent changes in the federal rules and contains six articles from authors with various perspectives on E-Discovery."
Over 250 pages are contained in the new issue.
We have many great scholarly articles published in the Oklahoma Bar Journal. But they are all generally outside of the subject matter of this weblog. Imagine my surprise to find tucked into the Law Day theme issue of the Bar Journal, the article "What Lies Beneath: Native Format Production and Discovery of Metadata in Federal Court" by Elliot Paul Anderson. This is an easy-to-read article on the topic of when discoverable digital evidence must be produced in native format with the metadata intact and when images or other formats are permissable. If you are handling litigation and the prior sentence doesn't mean much to you, you had better check out this article. Even the most knowledgeable litigator will want to read this article for its list of opinions from trial courts on this issue. Nice work, Mr. Anderson.
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