The One Where I Disagree With Craig Ball
I hate to do it, because I have the utmost respect for him, but my experience tells me that Craig’s latest article is going to create problems for Lit Support folks everywhere. Not because he’s wrong in any of it, but because far, far too many attorneys are going to see the headline, and the first paragraph, and walk down to their Lit Support department and demand that we do forensic collections.
They’re going to miss Craig’s later points about how to do single drive images correctly (Write blockers, secure work areas, locking evidence cabinets, pshaw! We don’t need that, I just need a copy of the drive.), and they are going to miss his suggestion that you know your limitations. It’s the rare attorney who understands the difference between a standard desktop hard drive, and an SSD drive, or flash memory, and why you need different equipment (connectors) to image them, or why smartphone forensics are very different, or a web or email server is a very different ball game.
The reality is that once you open up a “single drive imaging” shop in a law firm, a good portion of the lawyers are going to believe, and promote to their clients, that the firm does in-house forensics! The person tasked with capturing these images will spend just as much time explaining, arguing, and getting flack from attorneys who don’t understand the limits than they do actually imaging drives for a lower cost. I’ve been that person. It’s not worth the hassle.
To be fair, Craig covers that in the article, and attorneys with a good technical understanding will be able to grasp the conditions under which single drive imaging is really a simple task. Unfortunately, I don’t know how many firms really meet those conditions. I think quite a few don’t even really have a competent person to do the imaging. Note that I’m not saying they don’t have competent IT people, it’s just that your typical IT person is not schooled in the proper handling of evidence, and may or may not actually know how to use whatever tools are available to them. I’ve seen plenty of examples of perfectly good tech support or networking folks who do a horrible job of dealing with eDiscovery. (I’ve been that person too, in a former career.)
At the end of the day, maybe I don’t really disagree with Craig as much as I see the legal world from a different perspective. In a perfect world, there is really no reason why firms can’t do single drive imaging. My experience and my connections in this field tell me that this perfect world doesn’t really exist, though. Not in law firms, anyway. Not yet.
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I most assuredly did not want to create problems for Lit Support folks anywhere, let alone everywhere! I dearly hope that doesn’t come to pass.
Every point you make about the challenge of working in firms where the lawyers stubbornly refuse to learn about electronic evidence or are inclined to make overblown claims marketing their firms e-savvy strikes a chord of truth. I recently wrote a piece where I characterized this as the “I learned one thing in my early twenties (the Law), so it’s not fair to expect me to learn another thing for the rest of my life” syndrome. Lawyers in the 21st century are determined to go the path of Farriers in the early 20th. They shoe horses, don’t they? 😉
You’re right that it’s not a perfect world, Mike; but, isn’t it time that we stop accepting incompetence as the righteous alternative to perfect? I’m so blinking tired of hearing lawyers say, “There’s no such thing as a perfect e-discovery effort” as though they’ve shared some deep spiritual insight, grasshopper. Just because you can’t get to perfect, is that sufficient cause to make lousy the new good?
Lawyers have no trouble respecting limits of expertise when it comes to their work. Maybe, with some prodding, lawyers will come to appreciate the limits I outlined in the column. I can dream, can’t I?
Thanks for the kind comments. I’m a fan of your stuff, too.
Thanks for stopping by and commenting Craig!
I do agree that we should be aiming toward better practices and less incompetence even if that isn’t a perfect solution. On the other hand, I am reminded of a tip that was given to me by a senior partner who worked closely with IT at a firm. He told me I should always remember that lawyers are trained, and are very good at, finding any way to get what they want. I’ve found that holds true, even when dealing with an area they are unfamiliar with. They’ll get enough knowledge to think they can get what they want, without really knowing whether what they want is a good idea.
It’s actually not the attorney who knows nothing about technology that concerns me, they are usually happy as a clam to listen to my advice, understand that there are limits and, frankly, are usually relieved that there’s someone there to guide them. It’s the ones who only sort of know technology, but think they know it a lot better. Those are the ones who will hear “forensics” applied to their Lit Support folks, and apply that to all areas of forensic examination.
You know, the ones who heard metadata was important, and that it was the data about the data, and added “ALL metadata” to every one of their discovery requests. Or the ones who have read Losey and others espouse the future of native review, and changed all their requests to be for native documents, when their review platform isn’t really good at native review yet. Those are the problem attorneys, and I think every firm has some. A little knowledge becomes the edge to get what they want, without the context to truly understand what’s going on. And in this case, I start to wonder if the perfect, of saving some costs in imaging drives, becomes the enemy of the good, a balance of inside and outside resources that can get the job done without the conflicts.
But you keep dreaming Craig, we need that. Eventually, the legal profession will get there!