Same As It Ever Was

The ED community has been buzzing since the holidays ended about the recent decision in In re Fannie Mae Securities Litigation, _ F.3d _, 2009 WL 215282009, U.S. App. LEXIS 9 (D.C. App. Jan. 6, 2009) where the Office of Federal Housing Enterprise Oversight (”OFHEO”), was required to spend six million dollars, representing nine percent of its total annual budget, just to comply with a subpoena for electronic documents when OFHEO was not actually a party to the underlying action.

How does that happen you ask?  Well it seems OFHEO had relevant information in an MDL action against Fannie Mae and Freddie Mac and at some point during a hearing on a  Rule 45 subpoena served by the defendants, counsel for OFHEO appeared and agreed to restore a series of backup tapes, search them using terms provided by the plaintiffs and produce any non-privileged email and attachments.  The Plaintiffs  then came up with 400 key words for searching and the searches yielded over 660,000 documents. And then things got really ugly as OFHEO struggled to engage enough contract attorneys to review the documents, repeatedly asked the trial court for extensions and then failed to meet any of their own extended deadlines.

Now you may ask yourself, “why didn’t they object when the Plaintiffs asked for backup tapes?” or “why didn’t they object when they were presented with 400 search words?” or “why didn’t they object when they retrieved 660,00 documents?”  Good questions one and all but some better questions, and ones the OFHEO attorneys are probably asking themselves now, come from David Byrne. Questions like  “how did I get here?” or “how do I work this?” or “my god what have I done?”  

This episode should never have gotten to the point of 400 search words or 660,00 documents. Let’s assume for a moment that the OFHEO attorney had been asked to agree to have his client search and redact five years worth of archived paper documents from the agency. Would he have agreed? Of course not. His immediate response would have been “Your Honor that request could involve millions of pages of documents and may require thousands of man hours to accomplish. I can’t possibly agree to that without investigating how much expense is involved.” 

Yet when digital records are involved he is suddenly assumed to have no understanding of the most basic concepts? Why is it that just because computers and digital records are involved an attorney is allowed to say “oh sure, email…we can do that no problem.” and his astounding lack of basic technical education is ignored?  Their is no unusual amount of intelligence involved in knowing how many GB a PC may hold and how many pieces of paper that can become if printed out.  Any attorney with the most rudimentary knowledge about his clients PC’s should be able to say to himself:  “the average PC holds roughly 150 GB of data”, “A GB can be roughly  50,000 pages “, “my client has 5,000 employees with computers so that means …ok I’m not that good at math but I think I better stop right here before I agree to anything.”

Ralph Losey states on his blog that : “I am confident that if the government lawyers for OFHEO had had an experienced e-discovery lawyer with them at the first hearing, they would not have stipulated to the order they did, and all of the disasters that followed could have been avoided. But they did not, and as a result, they were bushwhacked.” and Craig Ball, in commenting on the opinion, mentions the “… abysmal lack of expertise respecting keyword search.” 

With all due respect to both Ralph and Craig, whose experience and opinions I hold in the highest possible regard, I cannot agree. The threshold question here is not knowledge of e-discovery technology, it’s the lack of the most  basic technical knowledge by attorneys. Because where they and many others commenting on this opinion see it as a parable for why we should be using concept searching in e-discovery matters I see it just another example of attorneys caught in the old paradigm of working with paper documents and being totally unaware of the most basic technical concepts.  

No, the real problem is one that Browning Marean and I have been trying to combat for over a year and that Ralph himself so accurately pointed out in a recent column: legal education involves no computer education. Why? Because legal education still has it’s own old paradigm. The one that working with a keyboard is not “professional” and is best done by support staff and hourly employees. You know, secretary types. As I was told by the dean of one leading law school when Browning and I tried to have him endorse the legal technology training initiative we have struggled to get underway for over a year now:  “We train architects, not carpenters.”

Great attitude Dean. You might want to tell those architects that they don’t have to use slide rules any longer.
“Watching The Days Go By”.


2 comments so far

  1. Craig Ball on

    Hi Tom: Thanks for the kind words. Though I’d quibble with your page equivalencies (see, e.g.,, I heartily agree with your assessment that there was a lot more missing from the handling of In re: Fannie Mae than search expertise. There were, as you aptly note, ample opportunities for alert counsel to keep things from flying off the rails.

    One more point: I wasn’t pushing concept search for the case. I don’t hold the view that concept search would have been any magic bullet here. It strikes me that the problems were much less rarefied that what search method should have been dancing on the head of this pin. You nailed it by focusing on the failure to attach credible cost figures early and get those numbers before the court. Regards, Craig Ball

  2. Ralph Losey on

    No real disagreement here. Unfortunately, these days the lawyers with “basic technical knowledge by attorneys” that you speak of here tend to be called “e-discovery lawyers.” My point is, trial lawyers, who typically know nothing at all re what you call “the most basic technical knowledge,” and what they call “all that geek stuff,” should not go to court on an e-discovery issues without someone who has *some* knowledge in this area. The problem is, the trial Bar does not recognize the need for any special knowledge of computers to do the work they have traditionally done, much of which includes discovery. Even if they did, who could the government attorneys have called on for help here. There are few Jason Barons in the federal service. Aside from Archives and the rarefied world of Justice, the federal government agencies in DC have few if any attorneys with even the basic knowledge you speak of. Until law schools wake up, and there are signs it is happening now, this will not change much. There is only so much CLEs to practicing attorneys can do. The paper prison is remarkable strong!

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