Two weeks ago, my refrigerator stopped working. It wasn’t the grinding, smoke-filled catastrophe that would have had appliance salesmen rubbing their hands together in glee, but it was serious enough that the contents of my fridge (but not the freezer compartment) had to be swiftly transplanted to a hodgepodge of coolers to keep food from spoiling. After spending three long days at home waiting for the appliance repairman to arrive, I finally gave up and began researching how to diagnose and fix the problem myself. Thanks to some great online resources about troubleshooting refrigerator problems, a full schematic diagram of my specific model of refrigerator, and a bit of luck, I eventually succeeded in restoring full functionality to my kitchen.
Appliance repair may seem far removed from e-discovery, but it occurred to me, as my fridge again began chilling my milk, eggs, and orange juice, that my recent experience has some direct parallels with e-discovery practice and our continuing efforts to stay on top of things.
1. We know surprisingly little about most machines that we use every day.
Technology, whether it’s a refrigerator or a laptop computer, is a fundamental part of our lives. However, while we confidently use complex machines like automobiles, cell phones, and elevators, the actual way that these devices translate our user input into action has increasingly become a mystery to us, the end-users. This isn’t a new experience—labor-saving devices have become increasingly complicated since the start of the Industrial Revolution in the late 1700s—but the sheer amount of technology surrounding us has never been higher. Advances in electronics miniaturization have also made it next to impossible to see (much less understand) the functional components inside many devices; tinkering with a soldering iron now requires a microscope and specialized tools.
Our understanding of our tools is particularly fuzzy when we aren’t even in physical contact with them. If you think of the storage server hidden in a remote equipment closet—or any popular web site—do we really have any idea of the hardware and software that power these virtual destinations? Though we may use services offered by these devices on a daily basis, we have almost zero understanding of how they work.
That same situation, of course, provides one of the basic struggles in adequately preserving, collecting, and producing electronically stored information (“ESI”) in litigation. Often, perhaps even typically, the key witnesses who created, distributed, or otherwise helped develop critical electronically stored work product have little or no idea about how their ESI is managed. These witnesses may understand the key strokes and commands they used to create or a particular document, but they can offer little if any guidance as to where these materials are physically stored. Moreover, because I.T. management procedures are rarely shared with end-users, witnesses usually have no idea whether their materials are mirrored elsewhere as a disaster recovery exercise or if their work product falls under automated document retention procedures. That knowledge is stored elsewhere—and finding it is a whole separate challenge.
2. Our expectations may lead us to the wrong place for answers and solutions.
Other than the lack of service technician, one of the biggest barriers to getting my refrigerator back up and running was my stunningly inaccurate understanding of how a modern household refrigerator works. In my mind, I imagined a system of flaps and thermostats to control the temperature of the air in the food compartments, along with sensors to provide feedback to the system. This made perfect sense to me, and armed with some vocabulary I had picked up from some quick Google searches, I figured I was on my way to diagnosing my ailing appliance.
A day or so later, after some much more careful research, I discovered that most of what I thought I knew about household refrigerator design was, in fact, wholly incorrect. The actual design of the appliance was radically different from what I had imagined—much simpler, actually—and all of my theories about which components were acting up bore little relation to reality. I would need a whole new approach if I wanted to effectively troubleshoot and (hopefully) repair my refrigerator.
This same experience occurs time and time again in litigation. While putting together an initial complaint (or answer), or in the earliest stages of discovery, legal teams often develop incomplete or downright incorrect impressions of how a responding party organizes and manages its business records and other ESI. Some of this inaccuracy is necessary; early in a case, conjecture may be the only tool that a lawyer has in trying to develop a discovery strategy. Problems arise, however, when the legal team doesn’t adjust its initial impressions to match the additional information that’s acquired through a meet and confer session, custodial witness depositions, interrogatory answers, and other procedures used to validate initial guesses about where relevant materials are located. In a worst case scenario, a requesting party may allege that the responding party is providing incomplete responses “because everyone knows” that materials are managed in a certain way. While some responding parties have, at times, required additional prodding to fully comply with their discovery obligations, arguments made solely because reality fails to fit a requesting party’s initial theories fall squarely into the type of “conjecture” that’s insufficient to persuade a court to grant any kind of requested relief.
3. Expertise is required to identify both the problem and its solution.
Discovering the gaps in my refrigerator knowledge disappointed but didn’t surprise me. After all, there’s a good reason why most people tend to delegate these kinds of repairs to trained technicians who look at dozens of appliances each week. These professionals have acquired exponentially greater knowledge of systems that I may not have to examine more than once or twice in my life.
What frustrated me, however, was that my initial quick research failed to increase my insight into my refrigerator and its problem. Instead, that small amount of knowledge actually hindered my ability to examine the entire system with an open mind. The appliance repair technician, the very last time he cared to speak to me, rattled off his pre-examination thoughts of the most common source of the problems I described. As I slowly dug through exploded diagrams of the cooling and blower systems in my refrigerator, I realized that I could have saved days of frustration (and about fifty pounds of ice) if I’d been able to have a conversation with the technician early in the process, rather than after I’d wasted several days running down blind alleys (it goes without saying that I would have saved even more time if the technician had ever shown up for one of his scheduled repair calls).
The same thing can happen with legal teams that don’t bring in expert help early in the litigation process to guide them on the best way to produce or request ESI. “Expert help” should be seen as a broad category of subject matter experts—while outside consultants can play a valuable role (disclaimer: I am an outside e-discovery consultant), in-house I.T., law firm litigation support, and seasoned e-discovery lawyers can all contribute important understanding to a legal team that’s otherwise distracted by developing multiple aspects of the case. Failing to bring in an expert in a timely manner, however, can cause a legal team to waste precious time and litigation budget pursuing dead ends. That’s neither efficient nor good service to the client.
Though it manifested as a problem in the cooling compartment, it ultimately turned out that my refrigerator was experiencing a problem in its freezer, which I had assumed was working properly because the food in that compartment was still solidly frozen. The combination of advice from the repair technician and the more comprehensive self-education I had acquired over the course of more second session of online research helped me isolate the true cause of the problem and figure out the corrective action that fixed the problem.
Properly conducted, there’s no reason that e-discovery projects can’t have a similarly happy ending. Initial assumptions may be an appropriate starting point, but they must be adjusted as additional information becomes available. Armed with appropriate guidance, additional personal expertise, and the right tools and resources to do the job, though, even complex ESI retention, collection and production projects have the potential to proceed as smoothly as...fixing a refrigerator—assuming the parts are in stock.