Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation

I am reluctant to share my unusual analytic approach to law, but am encouraged to do so by the words of the great British philosopher and writer, Bertrand Russell, a champion of math, logic, and justice, who said:

Do not fear to be eccentric in opinion, for every opinion now accepted was once eccentric.

He should know, he was jailed for six months for his anti-war writings in 1918, yet thirty years later was awarded the Nobel Prize for Literature.

My eccentric opinions are quite tame by comparison to his, namely that justice can be represented by an abstract logic formula. I invoke his name in part because abstract formulas were a speciality of Russell’s math and logic based philosophy. My goal here is not to persuade you to adopt this approach, but to stir up dialogue and independent thinking on Lex Principia. Thinking is important. It is dangerous and powerful in and of itself. In the words of Bertrand Russell, who was jailed again in London at age 89 for his anti-nuclear arms protests:

Thought is subversive and revolutionary, destructive and terrible. Thought is merciless to privilege, established institutions, and comfortable habit. Thought is great and swift and free.

Think about these ideas and leave a comment below. Feel free to disagree with my opinions, or to agree and take them to the next step, remembering Russell’s line:

I think we ought always to entertain our opinions with some measure of doubt. I shouldn’t wish people dogmatically to believe any philosophy, not even mine.

This essay pays tribute to Bertrand Russell, but does not attempt to emulate, much less denote his style. If you are not familiar with his work, or, like me, it has been a while, I include a good video at the end, The Three Passions of Bertrand Russell: Love, Truth and Justice. His best known work is A History of Western Philosophy (1945), but his most important work is considered to be Principia Mathematica (1910), which he co-wrote with A. N. Whitehead. Russell is considered one of the founders of modern Analytic philosophy, the dominant philosophy in the Twentieth Century.

Bertrand Russell was the grandson of a Prime Minister of Great Britain. He became famous not only for his work as a young man in mathematics, logic, and philosophy, but also for his later highly controversial writings and speeches as a anti-war activist, religious skeptic, and proponent of  sexual liberation. He is said to have written 3,000 words a day, almost every day of his life. He remained active as a political and social critic until his death in 1970 at the age of 97. Many consider him the greatest philosopher of the last century.

The Justice Formula

Justice is derived by the application of Law to Fact. The true Facts (“F”) of a case are parsed or divided by the Law (“L”). Although I use the equals sign here to represent an equation, J=F/L, in reality it is closer to an iterative process: J->F/L. This is because justice, at least in the common law tradition, is always created afresh according to ever-changing facts and slowly evolving law. Also, justice is elusive. It is an ideal that we seek through an imperfect process, a process that is repeated time and time again, much like a Mandelbrot set fractal iteration that approaches, but never quite reaches infinity: z->z² + c. Justice is an abstract ideal, much like infinity, it can be talked about, but never really fully understood or attained.

You could break down the “L” element in the Justice Formula in a number of ways and thus delve into a deeper legal analysis, but I am not going to go there. I know from experience it is a never ending argument. As Russell said:

The most savage controversies are about matters as to which there is no good evidence either way.

So, I will focus on the evidence and analyze the “F” part of the equation, the Facts. I am sure that Bertrand Russell would agree that focusing on the facts is a far more promising line of inquiry. As Bertrand Russell’s protege, Ludwig Wittgenstein, put it:

What is the case (a fact) is the existence of states of affairs.

Also see: Judge Bruce Markell, Bewitched by Language: Wittgenstein and the Practice of Law, 32 Pepp. L. Rev. 801 (2005).

Not too surprisingly, my analysis of the factual component of the Justice Formula shows that electronically stored information is the key component of justice in civil litigation today. This may just be a word game, as Wittgenstein warns, or it may be a true logic mirror of the existing state of affairs. You be the judge.

The Factual Numerator

The true Facts of a law suit are determined by three types of evidence: Testimony (“T”), Physical Objects (“PO”), and Records (“R”). This means that F=T+PO+R. The expanded Justice Formula thus becomes:  J=(T+PO+R)/L.

Testimony is given by, or often better put taken from, witnesses who, after making various solemn oaths, try to put into words what they recall about events. They do so not by providing a narrative, but by responding to questions put to them by opposing attorneys, typically by friendly direct examination and often hostile cross-examination. Testimony is based on human memory and is notoriously unreliable. Even when witnesses are all in good faith and trying to testify honestly, which some experienced trial attorneys says is the exception, not the rule, their recollections of the same event can vary dramatically. This variance, which is often conveniently slanted to fit a person’s interests, increases over time. That is why the second and third variables in the Justice Formula, Physical Objects, “PO,” and Records “R,” have always been more reliable than Testimony, “T.” For that reason, they – “PO” and “R” – are the key to determining the Truth, and thus key to the rendition of Justice, and so should be more heavily weighted than Testimony.

Physical Objects, “PO,” are typically called “tangible evidence” in the law, but I did not want to confuse the abstraction by using another “T” in the Justice Formula, so I settled on the admittedly less satisfactory phrase of Physical Objects. PO includes such things as a gun or DNA in a criminal trial, or  a tire or drug in a products liability case. Tangible evidence is very important in criminal law, but in civil litigation is of little or no consequence outside of products liability and negligence cases. I have never handled a criminal case and virtually no products liability cases or negligence cases. This may explain why in my thirty years of legal practice in “commercial litigation,” broadly understood, I have never been involved in a case where physical evidence played any role in the outcome of a case. In every civil case I have seen, the true Facts were determined solely by the Testimony of witnesses and the surrounding Records.

Testimony is so inherently unreliable, that the norm is for disputed issues of Fact to exist whenever witnesses testify as to what they recall happened. For this reason, and because Physical Objects usually play little or no role in most civil litigation, Records become all important to the determination of the Facts in civil litigation.  They are not subject to the same vagaries of human recollection and have a much higher degree of reliability. They are considered objective, that is unless they are created or forged after a controversy develops to try to create a false record of what happened. Thus they too have reliability issues, but of a different kind, and are typically far less pervasive and easier to detect than memory based testimony frauds. Unlike false or slanted testimony, which can be hard to impeach, fraudulent Records can be exposed and corrected in many ways. Testimony is still important, to be sure, but it is always tempered by the prior Records of what happened, and when there is conflict, which is common, Records made at the time are almost always believed over contradictory testimony.

Since we have seen that the Testimony element in the Justice Formula is discounted, and “PO” plays virtually no role in civil litigation, this means that the Records element in the formula must be very heavily weighted. In my experience, in a scale of 1 to 10, in civli litigation “PO” is a 1, “T” is a 5, and “R” a 9. So if we take the formula J=(T+PO+R)/L and adjust the font size to reflect the relative weight of the symbols, it would look something like this:

But we need to look deeper. What are Records? Records include what you typically think of as documentary evidence, namely writings of all kinds and forms, including paper and electronic writings, but also information that most lawyers would not think of as a document at all, including ever-changing-databases, videos, metadata, etc. There are then fundamentally two kinds of Records: Paper (“P”) and electronically stored information (“ESI”). The admissibility of ESI as evidence is a fact now embodied in the federal rules in 2006, but accepted many years prior to that in the common and statutory law of all fifty states. ESI and Paper documents are both Records under the law, although they are fundamentally different. The formula for Justice in civil litigation becomes clearer if we break down Records into its two  component parts, Paper “P” and “ESI,” where R=P+ESI. This level of detail in the formula will allow us to better understand the importance of electronic evidence and e-discovery. The Justice Formula thus expands out as follows:

J=F/L

J=(T+PO+R)/L

The Relative Importance of Paper versus ESI

There is still one step left, the weighing of the relative importance between Paper and ESI, as we previously did between the relative importance of tangible evidence, testimony, and records. Most lawyers today give greater weight to the Paper Records over ESI, and many try to avoid ESI entirely. Many lawyers are still operating under the mistaken impression that most of their client’s Records, and that of their adversary, are Paper Records. But that is not at all true. In point of fact, most are ESI. Moreover, almost all of the Paper Records we see are not originals, they are just printouts of part of the content of electronic records, pale shadows on Plato’s cave. Very few paper Records nowadays are created by hand, by pen or pencil on paper. The estimates I have seen lately project that 98% of the records of businesses today are ESI, and only 2% are Paper. It is true that most businesses are not yet paperless, but that is primarily because many people still printout some of their electronic records and store them in old fashioned filing cabinets. In fact, for most of the federal government that is still required!

Lawyers get the impression that by finding and collecting the relevant paper printouts, they are finding and collecting the relevant records needed to defend or prosecute a case. They are not. The paper is just the tip of a much larger iceberg of information. It may seem like a lot of records, but no matter how many paper documents you may see, there are always at least ten times more, often millions of times more electronic information in the client’s computer systems, backup systems, flash drives, i-phones, blackberries, and the like. Some of it might be very important to a lawsuit, such as databases, or everyone’s favorite, informal electronic communications such as email and text messages. Even if some of the electronic records are found, many lawyers, perhaps most, still fail to grasp that printing out out these ESI records and producing the paper is not the same thing as producing the ESI itself.

This confusion is the source of many problems. For instance, it can violate one of the basic rules of evidence requiring parties to produce and use original records for evidence. Unless the parties stipulate to the use of copies, originals are required as the best evidence. This preference to original records, over copies, is designed to assure the judge and jury of the authenticity of the records. Authenticity includes elements of both accuracy and completeness. Thus in the context of a paper type of record, a document must include all of the original pages and  all markings on any page, including handwritten annotations on a paper printout. Any attorney would object to a paper record that is missing a page. They might still stipulate to its admissibility into evidence anyway, if they were somehow confident that the missing page was of no consequence. But in any event they would probably point out the deficiency and weigh its potential impact, if any, to the case.  If they were not sure of the impact, they would not stipulate to the use of such a incomplete copy and would demand production and use of the original complete document.

Oddly, attorneys today do not exercise the same care and concern for ESI. They routinely stipulate to incomplete copies of ESI, namely paper printouts of ESI, or electronic files with some of their metadata stripped away. They do so without knowing the contents of the other elements of the electronic records that are not included in the paper printouts. The attorneys just assume that the metadata and other purely electronic information in the ESI records are of no importance. Even worse, some are unaware that there is such additional information. They are hiding the ball without even knowing it.

Many lawyers still falsely assume that a paper prinout of ESI is the same thing as the ESI itself. They call it a hardcopy as if were somehow more reliable by being tangible. Some even think the paper version is more complete and reliable than the electronic original because it can be Bates stamped. They have no idea of the value of hash, nor understanding of my proposal to replace the Bates stamp with the truncated hash value.

These same lawyers will, for instance, accept and use a printout of an email without realizing that the original ESI might show people who were sent blind copies of the email, a fact not shown on the printed version. They may not understand that the printout of the Word document does not not necessarily show the embedded comments included in that writing. They may not realize that that are scores of metadata fields containing information about an electronic record that are never included in the paper version of that record. Most of the time there is no harm from such ignorance and mistakes. The hidden metadata is rarely of any importance, just like one missing page in a hundred page paper document is rarely of importance. But sometimes that missing page, or that missing metadata, can be outcome determinative.

Since 98% of all records are ESI, and only 2% are pure paper, you could argue that ESI should be given 49 times as much weight as Paper. Indeed, I see a future where this becomes true. But for now, that would be a gross exaggeration (besides the font size differences would not show well). Many of the paper printouts of ESI originals are handwritten upon, highlighted, or clipped and marked in various ways, and so they become new evidence in their own right. Moreover, most of the ESI that people and organizations keep today is worthless for most litigation. The volume differential has to be heavily discounted for that reason too. Also, most of the metadata and other information that is stripped from a computer file when it is printed out is of no consequence to most cases (most, but certainly not all). That is another reason to discount the importance of ESI and not make it 49 times more important as its volume would otherwise suggest is appropriate.

In today’s world of Records, I suggest that ESI is only four times as important, not forty-nine times. Thus going back to our weighted font size rubic and one to ten scale, you have Paper as a 2 and ESI as an 8. Now the whole Justice Formula would look something like this, with P in 12 point font and ESI in 48 point font:

It is thus easy to see that ESI today is the most important element in the Justice Formula for civil litigation in America, or at least it should be.

Green v. McClendon

It is sad, but true, that the legal practice of most lawyers today reverses this formula and give four times (at least) as much importance to Paper over ESI. But this does not disprove the equation. To the contrary, the failure of American lawyers to follow this formula explains why civil litigation today is so askew and under such stress. A new sanctions case appears almost every week to prove this point. Consider for instance Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009). In this New York City case involving the purchase of an impressionist painting for $4.2 Million, U.S. Magistrate Judge James C. Francis IV entered sanctions against one of the defendants and her attorney. Judge Francis, like most federal judges in NYC, is an expert in e-discovery law. You might want to check out his one hundred and eleven slide PowerPoint, Surviving E-Discovery. He made this lengthy presentation in 2006 with U.S. Magistrate Judge, Sidney I. Schenkier of Chicago. Slide nine of the judges’ Powerpoint is on the Volume of Electronic Information. It states:

• AS OF 1999, 93 PERCENT OF ALL INFORMATION IN THE UNITED STATES WAS GENERATED IN DIGITAL FORM
• 80-90% OF DISCOVERABLE INFORMATION IS IN THE FORM OF E-MAIL
• MUCH OF THIS INFORMATION IS NEVER REDUCED TO HARD COPY FORM

Too bad the defense counsel in Green v. McClendon did not attend that seminar, they might have better survived Judge Francis’ courtroom.

In Green one of the two defendants, Mrs. McClendon, and her attorney, were sanctioned for their mutual failure to implement a proper litigation hold and preserve ESI and for the attorneys confused handling of paper and ESI records. The co-defendant, Mr. McClendon, who had separated from his wife, was not mentioned in this opinion. News reports of this case show that the couple had paid a $500,000 deposit on the $4.2 Million painting, then their marriage broke up and they changed their mind about the purchase. They never had possession of the painting and no written contract had ever been signed. The art dealer, Richard Green, wanted the $3.7 Million balance he claimed was due and Mr. and Mrs. McClendon wanted their $500,000 deposit back. This law suit ensued.

Here is what the opinion says about discovery in the lawsuit. Mrs. McClendon responded to a request for production, which clearly included a request for ESI, by producing paper and not much else. Plaintiff, Mr. Green, did not believe this was a complete production and so motions followed. This resulted in a hearing and an order by Judge Francis for defendant’s counsel to certify to the judge that this production was complete. Id. at *2. At this point, the facts start to get interesting, for suddenly defense counsel discovers and produces an undated paper printout of a spreadsheet, explaining only that it came from Mrs. McClendon’s home computer. The spreadsheet was important for some reason not explained in the opinion. It showed a purchase price for the painting of $4.2 Million. Plaintiff responded by asking questions about this mysterious paper spreadsheet, such as the date it was created, who created it, and the dates it was later modified. The answers to these questions could all be found in the original spreadsheet metadata, but that was not produced, only paper. Id.

After receiving these questions, Mrs. McClendon’s counsel then produced “what appear to be three additional electronic versions of the spreadsheet with partial electronic history for each.” Thus we are now left with four different versions of the same spreadsheet, none of them complete, not even the electronic versions, and all of them are different. None of the electronic versions of the spreadsheet included a purchase price for the painting, which, again for reasons not explained, seems to be important and helpful to the plaintiff. Defendants claimed that a third party, whereabouts currently unknown, prepared the spreadsheets, not them, and they could not explain the discrepancies. Id.

Mr. Green was not pleased. He asked for a forensic examination of the home computer to test the authenticity of these four versions of the spreadsheet and find out if the first paper printout was a fraud, an attempt to deceive plaintiff and the court. At that point Mrs. McClendon surprised everyone, except for her attorney, and announced that the hard drive had been wiped clean after this discovery began when “the son of a friend” who is “familiar with computers” reinstalled the operating system on her computer. The original files were supposedly removed during this process and copied onto CDs, which is where her attorney had retrieved the three electronic versions of the spreadsheet that were ultimately produced. As a result of this upgrade hard drive wipe, the details of which were not provided, it was impossible for a forensic expert to find the missing ESI information, the system metadata and deleted file fragments, to answer the questions of suspected fraud.  The full original ESI had been destroyed. All that was left was a paper copy that favored the producing party and three other incomplete electronic versions. If this had been a spoliation cover up, as Mr. Green of course claimed, then it had worked. The evidence needed to recreate a true record has been destroyed. Id. at *3.

The plaintiff demanded sanctions for this spoliation of the missing elements of the ESI records. He sought an award of fees and costs, another deposition, and the coveted adverse inference instruction, an instruction which always leads to victory. Judge Francis considered these facts, divided them by the law, and produced what he considered to be a just sanction for this bungling conduct. He did not end the case against Mrs. McClendon with an adverse inference, which I suspect would have ended the case for Mr. McClendon too, but did allow the deposition and ordered Mrs. McClendon and her attorney to pay for this whole fiasco. Although not expressly stated, I assume Judge Francis will allow plaintiff’s counsel to disclose all of these facts of spoliation to a jury, which will be further developed in the depositions. This can sometimes be as devastating as an actual inference instruction. Further, Judge Francis said Mr. Green could return to court later and ask for sanctions again, depending on what was revealed in the deposition. I wonder, for instance, who exactly that “son of a friend” was and what he did to the computer and why. I suspect we have not heard the last of this case. Here is Judge Francis’ explanation of how Mrs. McClendon’s attorney completely failed to understand what was expected of him, thus leading to spoliation and these sanctions.

*5 “The preservation obligation runs first to counsel, who has ‘a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction.’ “In re NTL, Inc. Securities Litigation, 244 F.R .D. 179, 197-98 (S.D.N.Y.2007) (quoting Chan, 2005 WL 1925579, at *6); see also Fayemi v. Hambrecht and Ouist, Inc., 174 F.R.D. 319, 326 (S.D.N.Y.1997). Moreover, this responsibility is “heightened in this age of electronic discovery.” Qualcomm Inc. v. Broadcom Corp., 05 Civ.1958-B, 2008 WL 66932, at *9 (S.D.Cal. Jan. 7, 2008), vacated in part on other grounds, 2008 WL 638108 (S.D.Cal. March 5, 2008). Indeed,

for the current ‘good faith’ discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search.

Id.; see also Phoenix Four, Inc. v. Strategic Re-sources Corp., No. 05 Civ. 4837, 2006 WL 1409413, at *5-6 (S.D.N.Y. May 23, 2006) (emphasizing counsels’ affirmative duty to search for sources of electronic information); Zubulake V, 229 F.R.D. at 433 (implying that “active supervision of counsel” is of particular importance when electronically-stored information is involved).

There is no question that Mrs. McClendon’s counsel failed to meet these discovery obligations. Unless Mrs. McClendon brazenly ignored her attorney’s instructions, counsel apparently neglected to explain to her what types of information would be relevant and failed to institute a litigation hold to protect relevant information from destruction. Moreover, despite numerous representations to the contrary, it is highly unlikely that counsel actually conducted a thorough search for relevant documents in Mrs. McClendon’s possession in connection with their initial disclosure duties or in response to the plaintiff’s first document request. If that had been done, counsel certainly would have found the spreadsheet from Mrs. McClendon’s personal computer files.

Many attorneys today not only do not get the importance of original electronic evidence over paper printouts, they are shocked to see a court hold them accountable for their client’s failure to preserve evidence, much less such elusive evidence as metadata. The electronic information of metadata is barely real to them. How in the world can they be personally sanctioned when their client accidentally loses it?

The duty of legal counsel of record to make reasonable efforts to have their clients preserve ESI, including, at a minimum, by providing notice to their clients of the legal duty to preserve, is still not well known, or if known, still not accepted by most members of the Trial Bar. Many think it should just be the client’s problem, not theirs. They think judges go too far to personally sanction them for their client’s misconduct. They do not think any of the responsibility should be on their shoulders. For more information of this controversial duty, which I call the Zubulake duty, and other cases applying this law to various factual scenarios, see my Duties blog page above.

America Needs Technologically Sophisticated Attorneys Who are Comfortable with ESI, Math, and Spreadsheets

The Green opinion, and countless others like it, show that the paper based litigation practices of most attorneys are out of sync with the actual electronic information systems of their clients. This is true for all sizes of clients, from the neighborhood pet store that runs on a computer, to the largest, most sophisticated global corporations. Our practices do not measure up to the Justice Formula because we are not keeping up. As I explained to lawyers in India just last week:

The Law must keep up with society in order to do its job as a guardian of truth and justice. Society is undergoing rapid, profound changes driven by technology and an explosion of information. Lawyers must keep up with these changes in order to remain relevant and do our job. We need to make the special efforts required to understand the new technologies and manage the vast, ever evolving forms of information. This is not easy and requires a new type of specialist, a lawyer that focuses on technology.

For some reason, I am the first  U.S. lawyer that this online publication for lawyers in India has asked to interview. Typically they only interview established lawyers in India.  They are beginning to take a real interest in e-discovery and this prompted me to take a greater interest in them. India is a country on the move. It already has some of the finest IT engineering schools and technology companies in the world. It is also the world’s largest democracy with a population of 1.2 billion, second only to China. Most people already know this, but did you know that India has over one million law school graduates, with only a few hundred thousand actually practicing law? Like the U.S., and unlike Europe, a law degree in India is an advanced degree, not a college alternative. India has approximately 60,000 law graduates every year, compared to 43,588 graduates each year from U.S. law schools. One of India’s law schools, Baroda School of Legal Studies, already includes computer applications and stress management (yoga) as part of its training, but does not have e-discovery, not yet. Still, as my interview shows, they are beginning to take an interest in the subject. Right now India is not a serious competitor to U.S. lawyers, but that is already starting to change. Some of our legal work is already being outsourced to India. Do the math on demographics. What do you think might happen in the future?

If lawyers in America are to keep their dominant position in the world’s legal economy and remain the go-to attorneys for most global enterprises, then we must understand the Justice Formula and adjust our legal practices to keep up with the times. We must not only create and understand documents, but also spreadsheets. We must become proficient in all forms of software and technology used by our clients. If we do not, others most assuredly will. Law is not immune to the competitive pressures of the global economy. American lawyers must keep up, or we are likely to get pushed out of the way by others who do, perhaps even by lawyers in India who, let’s face it, can afford to work for a lot less.

Conclusion

We cannot hold back technology. We cannot stop innovation. We cannot stop the information explosion. It is not a viable strategy to wish that everyone would just use the phone and stop sending emails. It is not a viable strategy to reach deals of incompetence with opposing counsel and pretend like paper discovery is good enough. It is not good enough. It is, in Plato’s words, like settling for the dim shadows of things seen by firelight, instead of direct vision of the things themselves in the clear light of the Sun. No. We must embrace change, while still remembering and honoring the past. We must ride the tidal wave, not shake our fist at the clouds. This is our best formula for successful competition on a global scale and our best formula for Justice.

I conclude with a YouTube video on Bertrand Russell on his three great passions: love, truth and justice.

The Need for Art and Surgery in Discovery

Guest Blog by Shannon Capone Kirk and Kristin Ali*

You always said people don’t do what they believe in,
they just do what’s most convenient, then they repent.
And I always said, “Hang on to me, baby, and let’s hope
that the roof stays on.”

Bob Dylan, Brownsville Girl

ART

Not every musician, in fact not one that I can think of, writes lyrics so full of art and poetry as the master himself, Bob Dylan. This does not mean, however, that they shouldn’t try. They should try real hard. Lest we be left with such trite and repetitious, dare I say, overly broad and unduly burdensome, lyrics such as I do, I do, I do, I do, I do. No offense to you Abba fans out there, but I think we can at least agree that there is a smidge more art in any Dylan song than in I do x 5.

While the occasional ABBA song is out there, many musicians pride themselves on creativity—going where no musician has gone before in lyrics and sound. Lawyers, however, fail to do the same when it comes to discovery. It seems that we are still in the same tug-of-war we’ve always been in, the issuance and receipt of vague, repetitious, overly broad, and unduly burdensome interrogatories and document requests and the boilerplate, although often justified and valid, objections. Is it that lawyers want to do what’s most convenient and then repent?

In other words, is it more convenient to issue repetitious, overly broad, and unduly burdensome shotgun interrogatories and document requests to avoid the thought, the creativity, the precision required to ask for what is needed? Are these repetitious, overly broad, and unduly burdensome discovery requests safe in the comfort that no sanctions will come out of their mere existence? Is it that counsel are free to repent their convenience by later reducing the scope and number of previous discovery requests? But, what good does that do anyone? Does this tactic not add delay and expense on what is likely an already expensive endeavor? Is it the fear that not being repetitious, overly broad, and unduly burdensome will mean that counsel neglected to ask for that one teeny tiny little scrap of data in an unused file folder on some tangential witness’s old and unused laptop? But is the cost of such expansive discovery for that minutia scrap of data really worth, really proportionate, with the needs of the case? If not, it’s ok to think about the case, be creative, figure out what’s truly needed, and inquire and request accordingly. Come on, its okay…hang on to me baby, and lets hope that the roof stays on.

There are certainly appropriate occasions for numerous interrogatories and document requests. For example, they may be appropriate in large money cases, involving complicated claims or numerous parties. However, in most civil litigation, there is usually a core set of issues and facts. Yet, interrogatories and document requests continue to mutate in scope and multiply in number like giant monster rabbits left alone and to their own devices in an unguarded carrot field.

Meet the fat rabbit, Unduly Burdensome

I know not all lawyers are poets, or actors, or musicians, or writers (although I’ve met a couple who are pretty darn entertaining). But I do think that some creativity, some thought could be given in lieu of unthoughtful, repetitious, overly broad, and unduly burdensome shotgun interrogatory and document requests. After all, repetitive, overly broad, and unduly burdensome discovery requests only lead to repetitious and boilerplate objections and no one getting anywhere except preserving a ton of ESI and incurring loads of angst for fear of spoliation. The problem is that even though Rule 26 requires pre-discovery meet & confers, and even though great cases like Mancia vs. Mayflower shed great light on the requirements of Rule 26, parties still issue repetitious, overly broad, and unduly burdensome discovery requests—and in most cases, those requests come after the alleged meet & confer and the possible Rule 16 conference and thus, after the time when parameters for preservation and discovery were supposedly set.

Here are some exemplars of some post-Rule 26 meet & confer discovery requests. You can imagine that these particular exemplars were repeated over and over and went on, and on, and on……. into the hundreds. The creativity in massaging a word here and there to make the requests seem less repetitious than they obviously were could have been spent on being more creative and precise in seeking what was really needed.

1. All DOCUMENTS concerning Corporation A’s stock price.

Lawyer’s secret thought: <Really? All? When? Which stock price? The price of the stock is not even debated. The price is the price is the price. What is it that you really want to know? And do I need advise the client to preserve every single possible thing related to “stock price” until we sort this out? When will that be?>

Lawyer’s actual response: Objection.  Request is vague, repetitious, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible evidence.

2. All DOCUMENTS concerning any consideration of acquisitions of any other businesses.

Lawyer’s secret thought: <Really? All? When? What do you mean by “any consideration”? Do you mean consideration as in the “contractual” consideration? Do you mean consideration as in any time anyone ever thought, even on a whim, “hey maybe I might want to acquire such and such a business someday?” And how would that ever be relevant to this case, which has nothing to do with any other acquisitions on this planet? Especially not ones that might have been “considered” or “pondered”, whatever you mean, in some remote past? Also, what do you mean by “acquisitions?” And, really “any” other business.? We’re talking about two businesses in this case, plaintiff’s and defendant’s. What is it that you really want to know? More importantly, what parameters are necessary for preservation and how much will that cost my client?>

Lawyer’s actual response: Objection.  Request is vague, repetitious, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible evidence.

3. All DOCUMENTS concerning forecasting the need to purchase any possible acquisitions.

Lawyer’s secret thought: <Huh?>

Lawyer’s actual response: Objection.  Request is vague, repetitious, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible evidence.

Although Ralph has written of Mancia v. Mayflower in the past year and the case has received quite a bit of press in the E-Discovery world, it does deserve mentioning again. In Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), Judge Grimm criticized the practice of dumping document requests on the other side, noting the reality that “lawyers customarily serve requests that are far broader, more redundant and burdensome than necessary.” On the flip side, he condemned the practice of boilerplate objections to document requests, explaining that:

It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry and discovered facts that demonstrated the burdensomeness of excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity on pain of waiver.

Judge Grimm makes clear that boilerplate objections are most definitely a no-no. And, Judge Shira Scheindlin of the Southern District of New York seems to agree, as she cites Mancia in an opinion of hers from early this year: S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403 (S.D.N.Y. 2009).

Yet, there is no thought, no art to the above exemplar requests and they unfortunately scream for “boilerplate” objections. I know what the song Brownsville Girl is about, the lyrics tell the exact story, precise and thoughtful. I do, I do, I do, I do, I do not know what the above requests are asking for or how the reader is supposed to respond. What I do know, however, is that these requests are the type of requests that have made E-Discovery so expensive—they are so broad and vague that an ocean’s wide net might have to be cast over the client’s documents and data in order to preserve, collect, cull, and on and on, “All” of the potentially responsive information. Of course, that is if the parties are unable to meet and confer and set realistic goals and parameters, which unfortunately is not as easy or routine as it should be.

SURGERY

The repetitious, overly broad, and unduly burdensome brand of discovery is the type of discovery frowned upon in the Final Report of the Joint Project of The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System (“Joint Project”). The report laments that “unfortunately, many lawyers believe they should—or must—take advantage of the full range of discovery options offered by the rules. They believe that zealous advocacy (or fear of malpractice claims) demands no less.” The Joint Project calls for a reform of the discovery process so that it actually achieves the goals of discovery. “Discovery should enable a party to procure in admissible form through the most efficient, nonredundant, cost-effective method reasonably available, evidence directly relevant to the claims and defenses asserted in the pleadings. Discovery should not be an end in itself; it should be merely a means of facilitating a just, efficient and inexpensive resolution of disputes.”

As the rules currently stand, they allow for discovery to run wild. The Joint Report quotes one respondent saying: “the new rules are a nightmare.  The bigger the case the more the abuse and the bigger the nightmare.”

So what’s an attorney to do when faced with a slew of vague, overbroad, duplicative or irrelevant requests? Providing rational and targeted responses, as called for in Mancia, is certainly in keeping with the cooperative spirit of discovery. Being surgical in request and response should also be considered.

Banning the overly broad and the boilerplate, as called for in Mancia, is a good start to streamlining the discovery process. But it needs to be more than an aspirational goal; it should be enforced. Prior to Mancia, Federal Rule of Civil Procedure 26(g) already required that every discovery request, response or objection be signed by an attorney of record, certifying that it is, among other things, not unreasonable or unduly burdensome or expensive considering the case. Judge Grimm explains the intention of Rule 26(g) in Mancia:

First, the rule is intended to impose an “affirmative duty” on counsel to behave responsibly during discovery, and to ensure that it is conducted in a way that is consistent “with the spirit and purposes” of the discovery rules, which are contained in Rules 26 through 37.

Second, the rule is intended to curb discovery abuse by requiring the court to impose sanctions if it is violated, absent “substantial justification,” and those sanctions are intended to both penalize the noncompliant lawyer or unrepresented client, and to deter others from noncompliance.

Most importantly,

Third, the rule aspires to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party. Despite the requirements of the rule, however, the reality appears to be that with respect to certain discovery, principally interrogatories and document product requests, lawyers customarily serve requests that are far broader, more redundant and burdensome than necessary to obtain sufficient facts to enable them to resolve the case through motion, settlement or trial.

To Judge Grimm, the appropriate way to deal with redundant and burdensome discovery requests from plaintiffs is not to respond with boilerplate, but for both sides to stop abusive practices by using the meet and confer system to cooperate.

If lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost – to all parties – is proportional to what is at stake in the litigation.

And, here is the surgery of discovery. To me, Judge Grimm is asking the parties to take out their scalpels and perform surgery on the beast of discovery before them.

Meeting and conferring can be helped along with actively involved judges who manage discovery. It is this kind of judicial enforcement that the Joint Project calls for. One of its main recommendations is to increase the involvement of judges from day one: “Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively. … Judges need to actively manage each case from the outset to contain costs; nothing else will work.”

After all, a good surgical team meets and preps before surgery to get a good and efficient game-plan together before cutting the patient open. Or, would it be better for the surgeons not to meet, cut the patient open, then fight over which kidney to cut out, and decide to just cut out both kidneys to avoid leaving the wrong one in?

Perhaps further surgical parameters can be set by imposing a maximum number of discovery requests. For the most part, parties have few restrictions on the amount of discovery requests they can make. The rules generally favor liberal discovery and do not impose numerical limits on the amount of overall discovery a party may request. Of course, courts can impose reasonableness standards on requests when they are in dispute, but overall the result is that parties can frequently make repetitive, overly broad, and unduly burdensome requests on their opponents with few limitations or repercussions.

Some jurisdictions have limited discovery. California, for example, has created two classes of civil cases with two different sets of discovery rules, limiting discovery in lower-stake cases, as a way to create a more proportionate system of discovery to the amount in controversy. The Southern and Eastern Districts of New York have imposed strict definitions on certain broad words used in a discovery request.  For example, words like “document” and the modifiers “any” and “all” each have specific definitions in the context of the local rules. Rule 26.3 establishes the maximum breadth that those terms may have. Some courts have limited interrogatories – Illinois state courts have a limit of 30, and the District of Massachusetts and the Southern District of California have limits of 25.

Perhaps, then, numerical limitations on document requests are part of the surgery necessary to curb discovery abuses. It is difficult, however, to pin down a number. Numerical limits might restrict parties from getting the correct information and prevent meritorious cases from being properly litigated. Numerical limits might also encourage creative accounting – putting multiple requests within a single request or lead to even more jumbled and inarticulate discovery requests. Yet, I’ve practiced in Illinois and I can recall working to fit my requests into the 30 interrogatory limit. Truth is, when it came down to it, in most cases, it wasn’t that hard. Numerical limits are not easy, but they are doable. We should look more to the state courts to see the lessons learned from their experience.

All in all, Dylan, I hope, sets a good high bar to try real hard to reach by way of creativity and thoughtfulness, Judge Grimm provides the idea that lawyers should be more surgical and cooperative, the Joint Project supports judicial enforcement and limits on discovery, and state courts provide examples of numerical and other discovery limitations. All of which all together could make for a good road to follow in curbing discovery abuse.

But to conclude, since I don’t foresee being before him anytime soon, I hope Judge Grimm takes it as a compliment that I’ve put him and Dylan in the same sentence. But, sorry Judge Grimm, although you can write one mean-old, artful, ballad of an opinion, I don’t know if I’d love paying every red cent of $500.00 to see you in concert, like I would to hear Brownsville Girl live.

*Shannon Capone Kirk is E-Discovery Counsel at Ropes & Gray. Kristin Ali is an associate in Ropes & Gray’s litigation department. This guest article encompasses their personal observations and opinions and does not necessarily reflect those of Ropes & Gray and its attorneys or clients.

Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education

The most famous allegory in all of Western Civilization is that of Plato’s Cave. This conceptual image is based on deep insights into the human condition. For millennium this analogy has allowed people to better understand each other and the world in which they live. As proof of its eternal veracity, I offer it as an explanation for why most lawyers today love paper and hate electronic discovery. The Socratic approach also points to a way out of the legal profession’s current crises of e-discovery competence; it suggests that a new form of education is imperative. The alternative may well be radical inter-generational disruptions and discontinuities in the practice of law.

Plato’s Cave

First a refresher on Plato’s Analogy of the Cave. It is found at the beginning of book seven on The Republic, which was written by Plato in 380 BC.  It takes the form of a dialogue between Socrates and Plato’s brother, Glaucon, concerning education. Socrates tells the story of prisoners who have been held captive in a cave all of their lives. They are chained so that they can only see shadows on the wall of people walking on a path behind them in front of  a fire. They can not directly see the people or the things that they carry. They can only see their shadows cast on the cave wall. That is all they have know all of their life and so they mistake the shadows for the people and things themselves. They are totally absorbed by the shadows and have become quite adept at interpreting what they supposedly mean. Here is a common graphic illustration of the cave set up.

One day a prisoner is freed of his chains and taken out of the cave and dragged up into the light. After a long period of adjustment he is able to see in the new light filled world and discover that he had been mistaking shadows for reality. He returns to tell his prisoner friends, but has trouble adjusting to the dark and shadows. He cannot still see the fine distinctions that the prisoners make out in the flickering forms. They still cannot turn around or leave the cave. They still see only shadows and know nothing else. They do not believe their returning friend. He does not see the shadows as they do. They think he is quite mad. In fact, they hate him for his better-than-thou stories and would kill him if they could. To refresh your memory with more of the details of the story of Plato’s cave, watch this cool clay animation version. I am sure Socrates would have approved.

Want an even more detailed refresher of the story of Plato’s Cave? Then watch this longer video, featuring a reading of a translation of this segment of The Republic dialogue. Note how in today’s world the cave shadows have been replaced by television images and other mass media.

By the way, The Matrix movie is the latest popular cultural expression of this perennial idea. Check out this video which spells that out for you.

Now read the original words of Plato. After telling the story, Socrates explains to young Glaucon the significance of the analogy of the cave to life and education.

And again, do you think it at all strange, said I, if a man returning from divine contemplations to the petty miseries of men cuts a sorry figure and appears most ridiculous, if, while still blinking through the gloom, and before he has become sufficiently accustomed to the environing darkness, he is compelled in courtrooms or elsewhere to contend about the shadows of justice or the images that cast the shadows and to wrangle in debate about the notions of these things in the minds of those who have never seen justice itself?

It would by by no means strange, he said.  …

Then, if this is true, our view of these matters must be this, that education is not in reality what some people proclaim it to be in their professions. What they aver is that they can put true knowledge into a soul that does not possess it, as if they were inserting vision into blind eyes.

They do indeed, he said.

But our present argument indicates, said I, that the true analogy for this indwelling power in the soul and the instrument whereby each of us apprehends is that of an eye that could not be converted to the light from the darkness except by turning the whole body. Even so this organ of knowledge must be turned around from the world of becoming together with the entire soul, like the scene-shifting periactus in the theatre, until the soul is able to endure the contemplation of essence and the brightest region of being. And this, we say, is the good, do we not?

Yes.

Of this very thing, then, I said, there might be an art, an art of the speediest and most effective shifting or conversion of the soul, not an art of producing vision in it, but on the assumption that it possesses vision but does not rightly direct it and does not look where it should, an art of bringing this about.

Yes, that seems likely, he said.

This quote is from my favorite translation from the ancient Greek by Edith Hamilton and Hunington Cairns, published by Princeton University Press as part of the Bollingen Series.

Paper Lawyers

Lawyers today, much like the prisoners of Plato’s cave, love paper because that is all they have ever known. They grow up in a paper world. They learn how to read on paper. They study paper books. They go to law schools where they learn that legal documents are made of paper. Their professors are just like them. They surround themselves with great piles of paper literature and paper case law. They teach using paper books and paper flip charts and require students to write papers. When taking evidence and trial classes, law students are taught with paper documents, shown how to test the authenticity of paper records and how to have paper admitted into evidence.

After school, older lawyers give them an endless supply of extra long paper, called legal pads, and do their best to keep them up to their neck in paper work. They are shown how to generate papers, copy papers, pile papers, file papers, notarize papers, shuffle papers, staple papers, clip papers, highlight papers, redact papers, watermark papers, and even add paper stickums to paper. They also learn how to keep paper calendars, speed-read large files full of papers, spot check papers, and carefully proof-read papers till they are perfect.

Some lawyers cover all of the furniture in their office with papers. A few even go so far as to put piles of paper on the floor creating an obstacle course to and from their desk, which is also entirely covered with papers. Papers make lawyers feel safe and secure. They provide status and prestige as a demonstration of productivity. They like to frame papers and put them on their walls. Some lawyers learn how to fax papers back and forth to each other. Some even learn how to email letters to each other and print out important ones to make them real.

Most judges and courts love paper too. Lawyers are required to serve papers on parties and opposing counsel, file papers with the court, and make paper trial exhibits. No witness exam is complete without marking papers, handing them to the clerk, opposing counsel, the judge, and then the witness. Some lawyers even blow up the special papers that they like to make them really, really big papers that everyone can easily see.

The trial lawyers are especially good with papers. They learn to chase paper trails, find tons of paper in other people’s filing cabinets, copy the paper, stamp the paper, produce the paper, and then explain the papers to a judge and jury. Some even learn advanced paper techniques such as Bates stamping papers to bring out their hidden order.

Lawyers live their entire life in a paper world. They start each day by reading a newspaper. When not doing paper work, they read paper books and magazines for fun. It is all paper, all the time, at work and at home. Lawyers are very adept at interpreting paper. They are the experts of paper forms. No paper is too lengthy or complex for them to figure out. Lawyers can and do stare at papers all day long

Just like the prisoners in Plato’s Cave, they do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.

Electric Lawyers

Almost all of the papers that lawyers love come from computers. There, in the electronic realm, they live in their full native glory.  There, and only there, is all of their information intact, their metadata, interconnectedness, and search-ability. None of this information ever makes it to the printer. The paper printouts are just two dimensional depictions of parts of the original ESI, in the same way that shadows are just two dimensional depictions of the original 3D objects. Papers are pale substitutes for the original electronic creations.

Just as the prisoners in Plato’s cave saw only the shadows of the people and things that happened to pass on the path behind them, so too the lawyers see only the papers that happened to have passed through a printer. They thereby miss most of the information world. In truth, only a very, very small percentage of information is ever printed out. In fact, almost all businesses records today only exist in electronic form and are never reduced to paper. The world of electronic information is far larger, more complex, interconnected, and beautiful than the paper lawyers could ever imagine.

Some lawyers manage to escape from their paper prisons, embrace the new world of electronically stored information, and sing the body electric. The transition from the paper shadows to full ESI is not easy. At first, most are overwhelmed by the sheer complexity and volume of the electronic source behind the paper shadows they knew so well. They are dazed and confused by the full magnitude of the information. It takes them time to grow acclimated to the new metadata they can now perceive. It takes them time to understand the interconnectedness of all digital information and grasp how it can be instantly searched and processed. But when they do, a whole new world of languages and skills opens up to them. Slowly they become masters of the electronic world that most of their clients take for granted. They learn to speak in new technical languages and start to understand how the world around them really operates. They stop printing out their emails and start using spreadsheets. They learn to hack and hash. They enter the Internet unafraid and rejoice in the near infinite webwork of html. They are reborn in cyberspace. They become electric lawyers.

Just as in Plato’s story, some of the electric lawyers feel compassion for their paper brothers. They decide  to return to the cave to try to practice law in the shadows again and share their new-found knowledge. At first, their eyes cannot adjust. They cannot remember all of the false distinctions made by those who do not grasp that paper is a mere printout of a larger reality. They speak in a language that the paper lawyers call techno-talk gibberish or computerese. They are not understood. Indeed, they are laughed at as nerds and geeks. When they first began to return in the early 1980s, the ones Ken Withers calls the protodigitals, the paper lawyers saw only their keyboards. In their darkness they understood them as typewriters and ridiculed the computer lawyers as secretaries.

The tales by electric lawyers of a vast new world of digital information, of better and faster, are misunderstood and ridiculed. The paper lawyers do not believe their wild stories of a so-called information explosion. They ignore the need to include requests for ESI in discovery. They reject the new hash stamps of digital information and stubbornly cling to their Bates stamps. The papers lawyers stick to the paper discovery. If they even bother to request email at all, they take the paper print-outs as if they alone were real. They do not understand metadata. It is invisible to them. So they refuse to produce it, whatever it is.

Just as in Plato’s story, the paper prisoners feel threatened by their electric brothers and sisters who speak a strange new language and live in a different world. They counter-attack in many ways. For instance, in the 1990s they persecuted electric lawyers who were the first to the Internet and accused them of broadcasting television ads without permission. One electric lawyer was even forced to submit his entire website to his state Bar association for approval as a television ad. His attempts to explain the world outside of the paper cave were futile. They saw the web show for themselves on the televisions sitting on their secretaries’ desks, which were actually computer monitors, but they did not understand the difference. The protodigital lawyer complied and printed out his whole website, disclaimers and all, consisting of thousands of pages of paper when so downgraded into two dimensions. Once the Bar governors saw the television add in the paper they loved and understood, they quibbled with a few terms, required a couple of revisions, and then approved his website, floridalawfirm.com, as a TV broadcast. The channel still remains, although the show has changed many times over the years.

In the Twenty First Century the paper lawyers continue to react as Plato predicted, albeit with more sophistication than before. They now spread rumors that electronic discovery is too expensive and will destroy our system of justice if not stopped. Other times they dismiss e-discovery as a mere fad that will pass. It is as if they really believed that people will soon abandon technology and return to the word of phone calls, ink, and parchment that they know and love. Flat screen computer monitors are starting to appear on cave walls everywhere, but they do not believe them. They live in denial.

When paper lawyers of today speak of computers at all, they speak only of computer viruses and threats to security. They attempt to clamp down on all employee computer use. They limit permissible software to ancient versions of Microsoft Office programs. They also try to make most of the Internet off-limits to all employees. They still pretend like only their clients’ paper records are real and only these papers contain information valuable for law suits. The only reason most clients have not left them years ago is that the senior in-house counsel are detached from the rest of the technologically sophisticated segments of the company. The senior in-house counsel are paper lawyers too and so they protect their own.

Some trial attorneys, with or without the permission of their clients, go so far as to enter into secret agreements with each other to ignore the alleged larger world outside the cave. They agree to look only at paper. Their often skeptical clients go along, intimidated by the rumors of runaway costs. Indeed, when paper lawyers dabble with ESI that they cannot ignore, they try to catch the fire through its shadows. That leads to mistakes, do overs, and wasteful expenses. It also often leads to sanctions and what appears to be unethical behavior. An ostrich can be mean when their head is removed from the sand against their will and they are forced to confront their own shadow.

Bray & Gillespie

A new order by Magistrate Judge Karla R. Spaulding illustrates this later point perfectly. Bray & Gillespie Management LLC v. Lexington Ins. Co. 2009 WL 2407754 (M.D.Fla. August 3, 2009). Severe sanctions were entered against the plaintiff and its lawyers for not producing hotel guest attendance records. The plaintiff’s paper lawyers only looked for these records in warehouses full of papers. When they found them in segments, they only made selective disclosures of what they found.  They were caught and sanctioned. The whole thing could have been avoided by simply producing the electronic guest records that were, of course, at all times readily available in the plaintiff’s computer system. They did not even try to look there, even though a native production was specifically requested and ordered by the court.

As an excuse plaintiff had a legal secretary for in-house counsel file an affidavit where she said it was impossible to download or export the data from their software, IQWare. She actually swore that the only way to get the information was to print it out onto paper. This is of course absurd, as a ten second search shows that their software is just a customized MS SQL database. It would have been easy to copy the database and turn it over, but the lawyers and their assistants only understood paper. As a result, they will now almost certainly lose the case. Judge Spaulding has entered a report and recommendation that plaintiff’s complaint be dismissed with prejudice and fees taxed against the plaintiff, now in bankruptcy, and its lawyers, not in bankruptcy, for their intentional, bad faith withholding of evidence and defiance of court orders requiring production of electronic evidence.

Some Electric Lawyers Stay and Some Go

Some electric lawyers grow frustrated with paper law and disputes like we see in Bray & Gillespie. They leave the cave and the practice of law entirely. They go to work for high-tech companies, e-discovery vendors, or become consultants, and the like. They devise ways to make ESI accessible to lawyers by making ESI seem like paper. They learn to convert electronic information to pseudo-paper images called TIFF and JPEG files. They keep most of the metadata in separate load files and try to convince the paper lawyers to use these image files instead of the paper print-outs. They enjoy some success and whole industries have been started devoted to the creation of a netherworld of image files between ESI and paper. Special software has been devised to allow the paper lawyers to review the electronic files on computers as if they were paper. This kind of TIFF review is expensive, but it allows paper lawyers many of the comforts of the cave. They can keep their familiar Bates stamp and can easily make print-outs of any image files they see for use at paper trials.

Other electric lawyers refuse to leave their firms, they refuse to go solo or join the world of vendors and consultants. They love the law firm culture for the same reason that paper lawyers love paper. It is all they have ever known. They remain in the practice of law and learn to hide the light and play the shadow games. They go along with the vendors go-between world of electronic TIFF image files. They stop crusading about the wonders of full digital reality and thus escape the ire of their partners, but they never give up on trying to subtly persuade them. Some are successful. It is a slow process. More and more lawyers free themselves from their paper chains. The electric lawyers learn to sidestep the reactionary rules and deal directly with the clients who understand. They leave the cave as needed to maintain their sanity.  They find sanctuary in their homes, families, and friends that are entirely out-of-cave and in the light.

Some electric lawyers are no longer satisfied with the compromise solution of hot-shadow TIFFs. They insist that the paper lawyers leave the cave entirely and deal directly with the original native forms. The clients of the paper lawyers are also not satisfied because the nether world of image review is expensive and they are asked to pay the bills. Some of the judges are also becoming dissatisfied with such pretend paper discovery. Yes, many judges have also been able to find their way out of the cave and see the light of full ESI. Once they return, they no longer tolerate the paper lawyers’ pretenses. They grow weary of the mistakes, hide-the-metadata blunders, last minute discovery requests, and the many sanctions motions that happen whenever paper lawyers play with the fire of ESI.

Education by Changing Direction, Not Inserting Vision

Although many lawyers have now escaped, the vast majority of the legal profession still live in the cave. Most lawyers are not able to keep up with technology, they are unable to deal with the electronic evidence underlying most lawsuits. They cannot adequately preserve it, collect it, process it, search it, or present it. In short, they cannot conduct e-discovery or comply with the new rules of procedure governing e-discovery because they do not know how. They only know and understand paper discovery and paper evidence. They are blind to the dynamics of electronic information.

If Plato’s theories of education are correct, this knowledge cannot simply be transmitted to them. There is no lecture or CLE program brilliant enough to insert vision into those habituated by a lifetime of paper. The mind is not a tabula rasa to be written upon by subject matter experts, especially by the time a person is an adult. As Plato said, learning requires “turning the whole body.” Lawyers must leave the caves, stop staring at the paper shadows, and make a change of direction. Lawyers must enter cyberspace and become familiar with computers and software of all kinds.  Then, and only then, will learned lectures, over time, be effective.

The Socratic process of learning by changing direction and action has already begun. Many lawyers and paralegals today are ready to change and leave the cave. The message has gotten through and they know that paper is only a small part of reality. Most lawyers already have a computer on their desk and use email throughout the day. They are ready to escape the paper chains.

All that they need now is an effective education that facilities the process of a new direction. We cannot use paper to awaken people from a paper induced trance. By logic only a cyberspace approach to education will be effective. Our current brick and mortar approach to e-discovery education is conceptually flawed. Online education is the answer. As Marshall McLuhan said: “The medium is the message.”

Not just any online education of course. It has to be good, it has to be effective. For online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. It needs to be a high quality art form.; in Plato’s words: “an art of the speediest and most effective shifting or conversion of the soul.” Of course, I do not mean anything religious by this, but I do mean a total transformation of perception, attitude, thinking, and action.

This new education will not come from law schools, they are tied up by paper bound professors. It will come from private companies that lead in technology. It needs to come soon, because society will not wait on the paper lawyers much longer.

Conclusion

Some of the protodigitals in all lines of work raised families and taught their children to read on computers, not paper. Unlike all of their friends who were raised by paper parents, they learned about the world by computers and other digital media. They grew up with computers around them at all times. These children of protodigitals are the postdigital generation. Some of these second generation nerds are starting to graduate from law schools now.

Born into an all electric world, with electric parents, they have never known paper blinders. They see the shadows for the printouts that they are. They grew up using new software programs and computer games. They have blinding speed on the keyboard. Many now have an innate mastery of all software. If it plugs in, or has a battery, they understand it. The Internet is their playground. The information explosion and non-stop technology changes are their friends.

That is all they have known their entire lives. They do not read the newspaper. They do not particularly like paper, they like pixels. The postdigitals write with paper as a novelty, the way their parents first used a computer.

Electronic discovery comes easy and natural to these second generation digitals. The protodigital lawyers, protodigital judges, and technology clients are their friends. The future of the law is in the hands of these postdigitals. They will serve the needs of the technology companies and people of today and tomorrow.

The only question now is whether the new education that the rest of the profession needs will come quickly enough. If not, the vast majority of the legal profession may be stuck in their caves while the world passes them by. They need help now to get out and be able to compete with the second generation digitals.

If not, there is likely to be a sudden shift in fortunes unlike the profession has ever seen before. The law firm rankings are likely to change rapidly and permanently over the next ten years. Moreover, once the winds of change become obvious, law firms of the future will be forced to put the paper dinosaurs out to pasture well before their prime. That will be the only way they can survive, the only way to try to regain their standing. Early retirement may become mandatory, especially for trial lawyers, as they are no longer able to understand what is really going on. The information in dispute may simply be beyond their ken.

The postdigitals are not tied by bonds of affection to the prisoners left behind in the same way that the protodigitals are. The postdigitals will carry the profession forward into the light of new technology and information, with or without the paper prisoners. The businesses and public that the profession serves will see to that. So too will the protodigital lawyers and judges.

Without a new kind of education, those still bound in the caves by paper chains may simply be left behind. Even if they want to get out, and I think many now do, they may be unable to. Even if they get out, they may be unable to function effectively. They may be overwhelmed by the volume and complexity of it all. No matter what their age, the paper bound lawyers may become irrelevant before their time. They may simply fade away along with the newspapers they love.

That would be a shame, for they still have much to offer the future of our system of justice. I suspect that such a radical discontinuity would not be healthy. But, it may be inevitable. One way or another, radical change will come because the law must keep up with the society it serves.