August 1, LTN ran an article headlined “Judge Orders Bickering Lawyers to Solve Their E-Discovery Dispute” and it got me thinking about what we’re doing here. It’s a story about two companies who sound identical to me and about how six people left one to join the other one and drama ensued. And, somehow, in that drama, e-discovery became part of the plot-line. So, I’d just like to take a moment to bring what we do back from the electronic, intellect-centered, thought-leader-y places that blogs like this one tend to inhabit. I’m talking about bringing e-discovery down to Earth, where the humans do whatever humans do. Are you still with me?
Great. I chose to read this story, frankly, because it had the word “bickering” in the headline. What a great word. So descriptive, so condescending. I stayed with the story because it reminded me of why this blog matters and also why it doesn’t. It does matter that we think about the proper use of technology in legal review because all legal decisions – if the system works – are ultimately responses to the evidence. And, more and more, the evidence is documentary and the documents are electronic. Basic stuff, right?
It does not, however, matter what we think of best practices in making sense out of your documents, if you’re more engaged with fighting the other side than you are with discovering the truth.
So, why I’m here? You know that we have products and services – solutions – that we would like you to purchase. We know that you have expenses and burdens – problems – that you would like us to solve. No one on either side of these sentences is here just for the intellectual exercise.
One of the great pleasures I take in writing these articles is that they are not written for academic purposes. I’m not writing so that you will write about what I’ve written. But, still . . . I get caught up in the experience of communicating the great information I have to share and “evangelizing” the great solutions we have. I lose touch with the fact that, behind every e-discovery project, there were human characters making human choices and stepping on the toes of other human characters who reacted in kind.
I am a fan of great science fiction and great fantasy and great escapism, but what I really respond to are stories that talk about my life with a clarity I can’t muster because I’m frankly just too smashed up against the window. And this is one of those stories: two environmental consulting and engineering firms about whom I know nothing are at war. They are at war not so much because of their technology – about which I know nothing – but because they are comprised of people. Real people who did things that irritated, angered and threatened each other. In this case, six of these real people left one environmental consulting interest and went to its rival environmental consulting interest. Trade secrets, the Claimant states, went with them.
I have a two-year-old daughter who loves the Octonauts. In one of my favorite episodes (please skip to 8:22 in this SFW link), the brave Octonaut medic Peso Penguin finds himself caught in the crossfire between two warring tribes of anemone. The anemones, identical except in color, sting each other repeatedly with non-lethal but painful blows. Each fights for its place on either side of a single rock on a beach. They can’t kill each other and they can’t move on either. While they receive the blows, it is Peso in the middle, trapped in their crossfire, who really suffers. This is how I imagine Judge Beeler feels in this case.
Since suit was filed in June 2012, one side claimed that it had reviewed 55,000 documents and that only 8% were responsive. Meanwhile, it claims that it had turned over 200,000 documents. How many of those could have possibly been responsive? The other side, for its part, claimed nearly 400 misappropriated trade secrets in its suit. J. Beeler’s opinion ordered that they focus on only FIVE of them. 5. Out of 400. Digital Miners, friends, I’m the canary here and I’m running out of oxygen just trying to do the math. What’s clear is that the agreed-upon search terms were over-broad, the claims over-reaching, and the judiciary figure over-annoyed. It’s August 2013 and the parties are still tossing non-lethal barbs at each other instead of pulling apart the issues and actually discussing what was stolen, if anything, and what value needs to be repaired, if any.
And, what’s clear is that the problem isn’t about eDiscovery or technology but about human abuse or neglect of eDiscovery or technology. The second page contains a single paragraph and a concluding sentence which sum up everything my recent writing has tried to convey. I quote it here in full (with identifying names removed), so that you don’t have to click if you don’t have the time:
[An associate representing one side] told LTN that the two sides have previously spoken about the possibility of using technology-assisted review, but that nothing had been decided. “I had a good experience with predictive coding in another case of mine,” said [an attorney working on the case]. “I thought it was very effective at culling documents to produce documents in response to one other.”
[The other side] did not respond to a request for comment.
I’m reminded of a famous book on training entitled No Bad Dogs. The implication is that there are only bad owners. E-Discovery is a just a set of tools and a set of problems, neither good or bad. No matter how good our tools are – and I direct you again to my company’s solution, where you will find a host of documents about the solution and free videos about how to use it – the problem will remain that there are humans behind all of the technology who are either abusing the system or simply failing to learn how to properly use it.
Eric Killough is the virtual canary AccessData has released into your digital mine. He is a JD, a CEDS, and a librarian. He thinks about electronic discovery probably more than he should. Please join him here, at Twitter, at LinkedIn, and at his own blog. He’ll be happy to meet you.