Archive for December, 2008|Monthly archive page

Bates Number vs Hash Value

There is a fascinating ongoing thread currently being played out on the LitSupport Listserv concerning the ability to create files of different contents and size with the same hash values when using the MD-5 hash.  Now I won’t get into the details other than to say the original discussion centered around the ability to hack digital security certificates with various forensics experts opining that the abilty to break an MD-5 hash “on demand” is imminent. (see for example http://www.x-ways.net/md5collision.html  where the authors assert that “… sufficient computing power might allow to manipulate files in such a way (e.g. append data) that their MD5 values will match that of known irrelevant files so that they go unnoticed in a forensic examination.”  )

It seems to me, tho, that once again we have a disconnect between the lawyers and the techies.  Aren’t we really talking about using hash values as a substitute for Bates numbers? And isn’t the point of that exercise to identify the source of a document duing a production?  After all, in the legal world, the ultimate authentication of a document comes from a person, not a program.

Sam Gilcrist is a legal technologist with technical training and a background working in the lit support field. He made exactly this point in his post on the thread earlier today when he said ” Documents are authenticated, not by a hash value, but by the litigants themselves. In other words, during review and when the document is entered into evidence the document is validated by the witness as either being the email / contract they signed or not.”

Exactly.  As Sam also points out, we use  hash values largely to de-dup document sets because of cost restraints and “… unless we collect a complete bit-stream image of the entire computer/network and all backup media for the relevant period of time, hashing is just a waste of time. ”  So let’s stop arguing about who has the most technical expertise to play “hide the hash” and concentrate on what we need to worry about: finding and reviewing relevant documents.

Working with enormous amounts of data is still expensive, even we use hash values instead of Bates numbers. So what’s the answer? Well of course here at the docNative Paradigm we think it’s native file review instead of enormous processing costs. And so did poster Julie Wade when she said (also earlier today) “Just stop processing and go native.”

I couldn’t agree more. I’ll report more on this thread as the week progresses but in the meanwhile a Happy New Year to one and all.

Merry Christmas from Gartner

Gartner Inc. has released it’s E-Discovery and Litigation Support Vendors MarketScope 2007 and it contains an early Christmas present for some lucky vendors.  Gartner Marketscopes are generally considered a precursor to the annual (and very prestigious) Gartner Magic Quadrant reports. (To quote Gartner, “The Magic Quadrant is a graphical representation of a marketplace at and for a specific time period. It depicts Gartner’s analysis of how certain vendors measure against criteria for that marketplace, as defined by Gartner. Gartner does not endorse any vendor, product or service depicted in the Magic Quadrant, and does not advise technology users to select only those vendors placed in the “Leaders” quadrant. The Magic Quadrant is intended solely as a research tool, and is not meant to be a specific guide to action. Gartner disclaims all warranties, express or implied, with respect to this research, including any warranties of merchantability or fitness for a particular purpose.”)

This is only the second ED MarketScope. Written by Debra Logan and published December 14, 2007 , the report examines 29 vendors in the electronic discovery software, technology, and services market.  The companies included in the report were evaluated on a number of criteria including market understanding, innovation, market responsiveness and track record.  Final rankings were given to 19 companies based on three criteria:  1. Sell software that cna be licensed inside a corporate firewall 2. Cover at least three of the functional areas of the EDRM model and 3. Have ED revenue greater than $10 million.

Ratings are broken are broken down into 5 categories: Strong Negative, Caution, Promising, Positive and Strong Positive.  On that basis, Anacomp (the parent company of CaseLogisitix) was rated “Promising”, the ranking generally given to any company making it’s first appearance in a Gartner report, which was the case here.  No companies were ranked Strong Negative, one was given a caution, two were were promising, either were Postivie and four were strong positive.

This rating is a firm recognition of the strong position CaseLogistix has achieved in the e-discovery market in the short year and a half since being acquired by Anacomp.  To my mind, it also shows that the docNative approach which CaseLogisitx has been promoting as the basis for their approach to e-discovery workflow is the best way to manage documents during the discovery process.    More and more, firms of all sixe are beginning to relaize that digital workflow with native documents is the most efficient way to handle document review and production.

I’m looking forward to the 2009 Gartner Magic Quadrant and will report on their findings as soon as it published. Meanwhile, best wishes for a happy holiday season to one and all.

docNative Discussion on Web Broadcast

Earlier this week, Browning Marean and I recorded the first of a monthly series of web based discussions on discovery and technology that we have undertaken. Called The E-Discovery Zone, the broadcast is sponsored by CaseLogistix strategic partner TechLaw Solutions and will be available beginning on Dec.17th.

This initial discussion featured a conversation with well known legal technologist and forensics specialist, Atty.  Craig Ball.  We talked about several subjects we felt were the major developments of 2008 and not surprisingly one of those was the shift of focus from paper based technology to the docNative paradigm. 

Now not everyone calls it that, of course. Browning and I did several webinars for CaseLogistix earlier in the year where we discussed this shift as the simply “the new paradigm”.  Ralph Losey referred to it as the “paper prison” on his blog and Ken Withers talks about the “protodigitial age” with it’s emphasis on “… objects from the analog world..” .

Craig, Browning and I had a fascinating discussion on this subject. We spoke about the digital educational level of attorneys (we found it generally lacking) and the resultant avoidance of e-discovery in many cases.  Ken Withers also made note of this in his article and states  bluntly that this deliberate ignoring of electronic information slows down ” … the truth-seeking purpose of discovery and evidence law.”  Not surprisingly it is this issue that Judge Grimm also delves into at length in the Mancia decision.

We all agreed that further educational efforts are needed, on the part of both attorneys AND clients.  The consensus was attorneys need to understand digital technology better in order to provide the best representation of their clients but that clients need to understand that zealous representation and adherence to the Sedona Cooperation Proclamation are not antithetical but rather required of an attorney as part of his ethical responsibility to the court under FRCP Rule One.

Craig and Browning felt that the response to all this discussion is more educational efforts in 2009 and that consideration of the docNative paradigm, regardless how it is termeed,  will be an ongoing part of that effort.  I certainly hope so because the 2009 ED predictions that I have seen so far don’t include any mention of educational efforts and without them the best prediction for 2009 will be more, and greater FUD …fear, uncertainty and doubt.

At least that’s the way I see it  … now tell me what you think.

EDRR Wraps Up

The 12th Annual Electronic Records and Retention Conference in San Francisco finished yesterday and was once again a great experience. This smallish conference is put on by Thomson LegalWorks every fall in New York, Chicagoand San Francisco, with Houston added to the list this year.  Co-chaired by Browning Marean of DLA Piper, Laura Kibbe of TLC and George Socha, the educational sessions feature a high concentration of practicing litigators and judges who bring a combination of expertise, experience and enthusiasm that results in an enormous amount of relevant and comprehensive course material.   

As I mentioned in my post yesterday, two areas of discussion stood out for me.  The first is the issue of ethics and competent representation revolving around techical expertise  that Ralph Losey  and Ken Withers  have been championing.  Although I agree with both these great minds on their analysis, I personally think the core problem goes a bit deeper to an overall understanding of the discovery process and the basics of civil procedure.  That issue has been discussed in depth by Magistrate Judge Grimm in the Mancia decision but I would also point you to an article written by Judge James Rosenbaum in the July 2007 issue of Federal Lawyer entitled “The Death of E-Discovery”.

Judge Rosenbaum (who was a speaker at the EDRR Conference in San Francisco) writes  that discovery is discovery and e-discovery is nothing more that “..old wine in electronic bottles”.  Comparing the growth of the ED market to the voracious plant Audrey in The Little Shop of Horrors, Judge Rosenbaum posits that all good discovery still relies on “..the sensible winnowing process that good lawyers have performed for years.”   Bravo.  As I’ve always said … computers are fast and people are slow but computers are dumb, only people are smart.  Good computers don’t replace good lawyering.

Which leads us to the second large issue: concept searching. Once again, Judge Grimm has lead the charge up the electronic hillside with his decision in Victor Stanley which derides the use of simple search technology and puts forth the need for concept searching.  Two problems: one, nobody know what concept searching is and two, lawyers don’t trust it.

An excellent panel on this topic at the conference featured two of the people I think are most knowledgeable in this field,  Atty William Kellerman, the ED Manager at Wilson Sonsini and Gene Eames, Senior Data Analytics Consultant at Spi.  (The third member of that list is Dr. Herb Roitblat of OrcaTec who unfortunately wasn’t at this conference) The main takeaways here?  Gene recommending using analytic tools at the front end of the process to help you understand the data you have in order to do more detailed searches as you move on and Bil stating categorically that more lawyers don’t use analytic tools because they don’t trust the technology.

So there you have it … great analysis by great panelists of where we heading for 2009.  And showing more than ever the need for ongoing education about the dramatic paradigm shifts in the discovery process. 

That’s the way I see it …. now tell me what you think.

EDRR Conference Update: The Protodigital Lawyer

I’m at the 12th Annual Electronic Records and Retention Conference in San Francisco and will have a full report later today when we wrap up but wanted to mention two related topics that have come up.  Several speakers, notably Browning Marean, have  mentioned the issue of techncial competence vs legal competence that Ralph Losey set forth in his blog post this week as a main cause of the problems we are having with high ED costs.  I don’t necessarily agree with that premise (more on that later) but the post is fascinating reading ( as Ralphs always are) and discusses  the second issue that has people here talking: the protodigital lawyer.

I love this phrase, in no small measure becasue it phonetically it reminds me of the word ‘troglodyte’.  It was coined by Ken Withers (and if you don’t know Ken, you should … more on that later as well) and used by him in his keynote address at the the Georgetown University 5th Annual Advanced E-Discovery Institute Program last month.  Ken lays the blame for our current problems as the result of too many attorneys thinking in the old paper based paradigm.  As he puts it:  ” …they are still thinking of the digital information system as a set of tools for producing information (the document, the email communication, the legal opinion or spreadsheet) that they will manage as though that information were paper-based.

I couldn’t agree more with that!  Take a look at Ralphs discussion and see what you think. I’m off to a breakfast workshop on ED Cost Reduction Strategies and will have a full report on this great conference later today.

Webinar on Most Important Cases of 2008

Browning Marean and I will be doing a webinar on the most important e-discovery decisions of 2008 on this coming Friday at noon Central time.  Sponsored by Anacomp’s Caselogistix , the one hour session will concentrate on what we feel are the most important case rulings to be handed down this year. My own opinion is that these decisions can be broken down into several main categories: search technology, format sanctions and ethical responsibilities. 

The first theme is illustrated by the decision in Victor Stanley v. Creative Pipe, where J. Grimm held that holds that the selection and implementation of a proper search requires technical and even scientific knowledge, stating “[F]or lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.” 

This decision, which flows from earlier holdings in U.S. v O’Keefe and Equity Analytics v Lundin, make more important than ever to devise (and share at early meet & confer conferences) a defensible search strategy that can withstand judicial scrutiny.  In fact, as I’ve noted here before, some commentators, including George Socha, feel that Victor Stanley has created a duty to hire a technolgy consultant in ALL cases.

The second area is format, where cases like White v. Graceland College and Goodbys Creek v. Arch Insurance extend the preference for native file or near native productions that we first saw articulated by J. Waxse in the Willimas v Sprint decison in 2006. Next is sanctions, as cases such as Johnson v. Wells Fargo Home Mortgage and R & R Sails v Insurance extend the trend towards steep sanctions and advers jury instructions that we’ve seen since the Zubulake case.

Finally is ethics where cases like Qualcomm extend the sanctions area to include reporting counsel to a state bar association for ethical violations and the newer concept of the duty of cooperation encompassed by the Sedona Cooperation Proclamation and endorsed by Judge Grimm in Mancia v Mayflower.

So join us Friday as we dig a little deeper into each of these areas and give you our interpreation of these cases and what the mean for the future of both e-discovery in particular and litigation in general.