The Gen. Michael Flynn case is has been a hot news story over the last few days, with the DOJ having just decided to drop its prosecution. This case has had a significant number of e-discovery issues that have come to light recently. The most recent item to hit the news was a filing from Covington & Burling regarding an ESI snafu that I think almost all e-discovery practitioners can relate to on some level.
While the larger case is a political hot button that is well beyond the scope of this blog, there’s a very common thread for e-discovery practice in there: Lawyers and IT not being able to communicate.
“Covington determined that an unintentional miscommunication involving the firm’s information technology personnel had led them, in some instances, to run search terms on subsets of emails the firm had collected for its response to document requests in United States v. Rafiekian, the case involving Mr. Flynn’s business partner and their FARA-related work through their consulting firm, rather than on the broader sets of emails that should have been searched. The subsets that actually were searched nevertheless contained a large volume of emails concerning our representation of Mr. Flynn and his consulting firm. All of the emails resulting from this search were transferred to successor counsel in June and July 2019. Covington has now re-executed the email collection and searches on the broader set of emails, correcting the error made as a result of the miscommunication.”
Here at Wooden, we’ve seen this issue time and time again. Almost invariably, a deficient production will be blamed on some sort mishap with the vendor. In one recent case, opposing counsel produced a large set of data that we were able to determine was over 90% non-responsive. The explanation given was the same as that found in the Covington & Burling supplement filed in the Flynn case: a miscommunication caused the vendor to search the wrong data set.
This “failure to communicate” is a common issue that leads to frequent mistakes. Even prestigious white-shoe firms working in national news worthy cases struggle with the translation from legalese to IT-speak and from IT-speak to in court presentation of facts.
Is this a function of the hyper-specialized workflow in which the “telephone game” mode of communication is the norm? What can we do to prevent the “signal loss” in each step of communication that leads to mistakes like these?
When signal loss results in a law firm blaming its vendor in court papers, everyone involved in the process pays a significant price. When dealing with significant ESI volumes in a case, getting skillful translators involved in the process from the outset is essential. Familiarity with IT systems and being able to clearly communicate the project scope go hand in hand. The former is a necessary but not sufficient condition for the latter, therefore it’s useful to be mindful of both. By way of example, take these hypothetical instructions to an associate/lit support staff/vendor:
- BAD: “Search the data on the system”
- GOOD: “Search the PST files”
- BETTER: “Search the PST collection of Wile Coyote (WCoyote@acmecorp.com) currently stored at H:\ACME\Rocket Skate Litigation\Collections\WCoyote\” using the attached search term list and a date restriction from 1/1/2018 to 12/31/2019”
The “Bad” example is a phrase that one would expect from someone lacking tech savvy, and as such it’s not especially clear to the associate or vendor project manager receiving it what it is that’s needed. They are left to interpret the precise meaning of “data” and “system” as used.
The “Good” example shows some familiarity with the technical side. This person knows that data they want is in PST format. This helps, but does not get them to the finish line. Instead, it leaves room for the miscommunication that prompted this post.
The “Better” example combines technical clarity with in specific communication that arguably eliminates any need for interpretation. There may be other ways that your organization can improve workflows and processes to do accomplish that objective.
Ultimately, effective communication remains the key. When we deal with witnesses or clients who speak another language, we call in interpreters. Communications among custodians, IT personnel and lawyers create issues with translation and extended lines of communication. These types of communications in turn can lead to misunderstandings that compromise a client’s position. Planning, homework, and accountability remain the key tools. This means getting the right resources in the right places in your work plan and combining those resources when necessary for the best result.