Spoiled and Deluded: The Shakespearean Tragedy That is Search in E-Discovery
POSTED ON November 04

We feel confident that if you follow eDiscovery at all—and you must since you are on this site—you know who Craig Ball is. The Texas-based law professor, forensic examiner, and blogger is one of the industry’s foremost thinkers. We were delighted to sponsor his October 15 presentation of “Spoiled and Deluded: The Shakespearean Tragedy That is Search in E-Discovery” at William Mitchell College of Law. The seminar was a veritable master class on eDiscovery search issues.

We sat down before the event to chat about the state of eDiscovery, and how lawyers who are late to the party can get started.

SD: What are the risks to civil justice of poorly conducted eDiscovery searches?

CB: The costs of mishandled discovery can be so great. Cases without merit can be monetized in the system because decisions are made to settle lousy cases for economic reasons, and that’s not what we want in the courthouse.

SD: But taking the long view, aren’t today’s options with technology providing better access to information than in the days of paper documents, where it all was looking for needles in haystacks?

CB: Yes, we have better tools for finding needles, we have better magnets, but we have lots more haystacks, and bigger haystacks. There’s a lot of good wheat out there, but it’s buried in chaff.

SD: What does the profession need to do to become better at protecting an ethical and effective information-governance process?

CB: We’ve got to invest more in teaching people how to organize information. Most of us just dump our documents into something called a “My Documents” folder, and consider that to be good enough. Most of us consider our inbox as a gargantuan archive of everything in our lives. We have allowed technology to create this vast volume of unstructured data.

At the same time, we’ve put mind-boggling quantities of data into structured environments, in e-mail systems online databases in customer relations, and sales tools. We’re constantly accumulating information that feels free, that feels lightweight, because storage is cheap, and we can keep carrying these things behind us like Marley’s Ghost. We have great tools and search capabilities for finding the one thing. What we don’t have are search capabilities in the hands of the lawyer masses for finding all of the things that concern a particular issue. We have crude meta-data capabilities. We know who it’s to or from. We know the date of transmittal. But once we get past those metadata fields, we are dealing with the vagaries of language.

SD: But predictive coding is showing a new path with some of these new capabilities in place, yes?

CB: A good predictive coding methodology is a significant leap in the quality of search, the efficiency of search. [It] can serve as a proxy for human judgment.

SD: Perhaps even better than human judgment?

CB: The idea that the gold standard is a human being—or a lot of human beings, in a room, page by page, looking at documents to characterize them—is wrong. It’s a delusion. It worked well from the standpoint that it got us from point A to point B, but that’s because we rarely looked at from a standpoint of quality control and quality assurance.

SD: Can you talk about your thoughts on proportionality?

CB: Sure. Your idea of proportionality as my opponent might be different than my idea of proportionality. Neither of us are objective. Why should I have to pay money because you sued me with a specious suit? That’s the problem with proportionality. It’s like the Golden Rule. It’s laudable, but it’s often hard to apply in day-to-day practice, in the world of litigation. We’ve seen rule changes to bring proportionality more to the fore.

SD: How do you balance your practice with your writing with your speaking, and with everything else you do?

CB: I don’t know that I do. I speak 50 to 70 times a year, mostly outside of Texas. I’m on an airplane on average four times a week. So it’s busy.

I love the writing. I teach law school, and compress that into a long, three-hour class once a week.

My practice is limited to two things. I’m either a court-appointed special master or a consultant. I spend more time in court mixing it up on the stand as a consultant or court-appointed expert than I ever did as a trial lawyer.

SD: What advice do you give young lawyers?

CB: To read deeply. I’m of the certain age where I got a classical education. There were things that I had to read in my various majors, and that used to be a universal experience, whether Dickens, or Shakespeare, or Robert Frost, or Emily Dickinson, or Mark Twain, that are not increasingly part of the common experience. Or classical mythology. Challenging young people to realize that things happened before the era of the DVD. There are movies in black and white worth watching.

SD: What are your thoughts on eDiscovery education in law schools?

CB: It’s getting there. Georgetown has a great program. I’m biased, because I’m one of the founders of the Georgetown eDiscovery faculty. There’s nothing else like the academy out there. We feel like we’re training the trainers.

SD: And your opinion of the developing case law?

CB: I think the courts are getting it right on a regular basis. I’ve been impressed by the federal bench. Most of the federal eDiscovery cases are quite well-reasoned and competent on the technology. There have been some that went off the rails, where courts tried to apply how they did it in practice, but by and large the quality of the scholarship [is] laudable. Ninety percent are good. I’d give it high marks.

SD: What rankles you most about the state of eDiscovery?

CB: My pet peeve is that eDiscovery is being taught by lawyers to prospective lawyers as legal issues alone. The teachers are far more comfortable with the case law than with the underlying technology, which they leave to some minion. The “e” is important in eDiscovery. If we continue to turn a blind eye to the technology, if we don’t cultivate the skill set [for] data storage, if we don’t help lawyers understand why forms of production matter, if we don’t teach them the limit of search, we are setting them up to fail. And when they fail, they fail their clients, and the justice system fails.

SD: What is your advice to lawyers who don’t think of themselves as particularly tech-savvy in terms of getting up to speed on eDiscovery?

CB: Nothing that we’ve ever had to learn happens by osmosis. We have to make an effort. There’s a ton of information out there. Read a case. Identify the concepts or the mentions of technology. Say to yourself, “I’m going to give it an hour this week to study it.” Dedicate time to this discipline: it’s not going to pass. We’re not going to get less digital. It’s just going to get harder and harder if you don’t make an effort. Just start giving it an hour a week. It’s a skill set you’re going to need going forward.


About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.