When it comes to electronically stored information, Tom O’Connor is a national treasure. He has a wealth of litigation-related ESI experience, helped run the prestigious Georgetown E-Discovery Academy, lectures on recent cases and developments in the law, has published several books and blogs, and is a consultant. He has generously shared his encyclopedic knowledge with countless less-experienced attorneys and other legal professionals.
Because a book that Tom co-authored, “Electronic Discovery for Small Cases” (ABA 2012), has been on my bookshelf for a decade, I was thrilled to receive a copy of “Ediscovery for the Rest of Us,” published by Tom and Gulf Coast Legal Technology Center.
There is an old military saying that “any ship can be a minesweeper – – – once.” Tom’s latest book shows general practitioners and business executives how to avoid the mines. For example, he discusses: ESI budgeting; do-it-yourself options; use of native files and phasing to reduce cost; and when a vendor or consultant is needed, and when one is not necessary.
The book is focused on the “small” case. However, just like “minor surgery” has been described as “surgery on somebody else,” Tom points out that no case is “small” to those who are involved in it. Tom espouses a “bull’s-eye” viewof electronic discovery that is tailored to those cases.
Even in small cases, when there is e-smoke, there is good reason to expect an e-fire.[1] Tom’s book is a “how to” guide to finding the fire and avoiding getting burned. He uses Digital War Room a/k/a DWR as a teaching example. It is a great program and I have also used it extensively. It is perfect for the types of cases Tom addresses, and he succinctly explains that it is easy-to-understand, with a user-friendly interface. He notes that it has multiple functions (including ingestion, de-duplication, processing, redaction, privilege log generation, and TAR capabilities), production tools, and offers reasonable pricing. That is precisely the type of detailed and specific guidance that general practitioners need. Tom also points to other options.
Always remember that technology is a tool and humans use tools, not vice versa. The ultimate decision-making about what tool to use and how to use it resides with you, the attorney. To that end, I would suggest that AI[4] should stand for ‘attorney intelligence.’
Tom O’Connor
That segways neatly into Tom’s discussion of proportional search methodologies. In Tom’s words, “you cannot expect a 747 jumbo jet to be used as an effective or cost-efficient means of transporting commuters during rush hour traffic.” Tom cogently emphasizes what he describes as an “overlooked” but “extremely significant” part of Sedona’s Cooperation Proclamation, and that is “the development of practical tools to facilitate cooperative, collaborative, transparent discovery.” He adds that “I believe we need more discussion about those ‘practical tools’ which will promote the ability to cooperate.” Tom’s suggestion is critical. Abraham Maslow reportedly said that, “if your only tool is a hammer, then every problem looks like a nail.” Tom’s focus on choosing among the many tools and finding the right one is spot on.
However, more is needed. Even with a good tool, “smoking guns will not look like smoking guns in the files of someone who knows what he or she is doing. Especially when they’re hidden in hundreds of thousands of documents.”[2] Tom’s book provides the foundation that is a necessary predicate to efficiently finding the smoking gun. Tom begins his book with a historical description of how ESI developed in litigation and industry, covering Zubulake, the EDRM, the Sedona Conference, “information inflation,” Judge Grimm’s Mancia decision, and the watershed 2006 “ESI Amendments” to the Federal Rules of Civil Procedure, with the all-important Advisory Notes, as well as the important 2015 rules amendments. History is important and Tom’s summary is condensed and informative.
But Tom’s book is also about process. Good processes will avoid decisions stating that “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion. However, unlike a Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly.” Coquina Invs. v. Rothstein, 2012 WL 3202273, at *1 (S.D. Fla. Aug. 3, 2012), aff’d, 760 F.3d 1300 (11th Cir. 2014).
Tom addresses the important of processes, such as data mapping, and techniques like project management. He poses Michael Quartararo’s key question of “What does ‘done’ look like?”[3] This is part of the project management lifecycle that Tom describes. Importantly, Tom brings these important processes “down to earth” with concrete examples from Digital War Room. My complaint about calls for “technological competence” is that they are frequently not accompanied by suggested ways to achieve that goal. Tom’s book avoids that flaw. He shows histograms, “who to whom” tables, issue coding, social network analysis, email threading, and production techniques in an affordable platform.
At its core, however, Tom’s key focus is on training the lawyer to: choose appropriate technologies; develop sound processes; and, implement them using checklists. He asks: “[W]hat is the average practitioner to do to effectively manage eDiscovery in small cases?” In answering that question, Tom wrote:
“Always remember that technology is a tool and humans use tools, not vice versa. The ultimate decision-making about what tool to use and how to use it resides with you, the attorney. To that end, I would suggest that AI[3] should stand for ‘attorney intelligence.’”
Tom offers several non-technological but critical conceptual tools for legal professionals – think through your case and focus your discovery. Meet early and often with opposing counsel. Determine your needs – do you need deleted data or metadata? He carefully explains the use of phased discovery and sampling to reduce costs. That is a critical and effective concept that, he explains, is too often overlooked.
In focusing on the lawyer and quoting John Martin, Tom writes that “it’s the archer, not the arrow.” He adds: “To me, we are losing sight of the proposition that people are slow and computers fast, but people are smart and computers are dumb.” Tom makes a novel argument that attorneys have an ethical duty to “supervise” computers that they use.
The checklist manifesto is based on the theory that we have so much knowledge and skill that we must use checklists to avoid missing key points and effectively deliver services. Tom provides checklists that address every step in the process. For example, in the section on “working with data,” he suggests checklists for using native files, controlling the data yourself, and, keeping data sets manageable by culling them.
If Tom’s advice is heeded, no future court will hear an attorney say, “I don’t even know what ‘native format’ means.” And no future court will have to respond: “You’ll have to find out. I know. Apparently [opposing counsel] knows. You’re going to have to get educated in the world of electronic discovery. E.S.I. (electronically stored information) is here to stay, and these are terms you’re just going to have to learn.” Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal. App. 4th 853, 859, n. 4, 160 Cal. Rptr. 3d 557, 563 n. 4 (Sept. 10, 2013).
Tom’s book is titled ESI “for the rest of us.” Its focus is on the general practitioner who is not already steeped in the intricacies of ESI. That is an important audience: “It is no longer amateur hour. It is way too late in the day for lawyers to expect to catch a break on e-discovery compliance because it is technically complex and resource-demanding.” DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 942 (N.D. Ill. 2021), quoting Donald R. Lundberg, “Electronically Stored Information and Spoliation of Evidence,” 53 Res Gestae 131, 133 (2010).
[1] L. Zubulake, Zubulake’s e-Discovery (2014), 44.
[2] James Layton, Esq.
[3] “Artificial Intelligence.”
