You can kill an analogy with overuse, just as every cliché was once a clever new phrase. Describing e-discovery / e-Disclosure in terms of explorers and maps, however, does not become hackneyed, because exploration itself continues to excite and because it works very well as a parallel.
Each nation has its own stirring examples, and they come from all over the place. What do I get if I take the first ones which come to mind? Mallory and Tenzing climbing Everest in the year I was born. Howard Carter and Lord Carnarvon in Tutankhamen’s tomb. Sir Walter Raleigh in Virginia and South America. Scott, Shackleton and the others in the snowy wastes of Antarctica (I have a soft spot for Sir Vivian Fuchs, leader of the first overland crossing of Antarctica in 1958, if only for the newspaper headline “Vivian Fuchs off to Antarctica”). Doctor Livingstone greeted by HM Stanley in an African clearing. The use of maps necessarily implies that someone else has been there first, but is no less interesting – I have just bought a large-scale ordnance survey map of England in digital form so that I can scroll across it as we drive (as my wife drives, I should say), so interested am I in the landscape through which we pass.
If you are American, you do not need to go abroad to find stirring examples of exploration, and many of them are more or less in your own backyard. The names which come to mind are those of Lewis and Clark, whose expedition of 1804 to 1806 was the first overland exploration to the Pacific coast and back. That had a political and commercial purpose going beyond mere exploration for its own sake, since the US was in the process of undertaking the Louisiana Purchase, and neither it nor the French who were selling it, knew how big the acquisition was. We now know that it comprises about 23% of the modern US.
I am brought to this apparently random line of thought by a reference in Tom O’Connor’s recently published Top 10 EDD Tips for General Counsel, which can be found on the Law Technology News website (the second article on that page) and were the subject of Tom’s Masters Conference webcast. One which caught my eye was Point 5 which reads:
Talk to your IT department. They know how to make the map. You are Lewis and Clark, they are Sacajawea. You absolutely cannot navigate without them.
I confess that I had to look up Sacajawea, who appears to be Pocahontas, Grace Darling and Edith Cavell rolled into one (now it’s your turn to reach for Google). She was a Shoshone who accompanied the expedition, translating, negotiating, nursing, guiding and generally being indispensable. She was, it seems, an early exponent of data recovery, since it was she who rescued the journals and records of the expedition when a canoe capsized.
Tom O’Connor’s vivid example is used to illustrate something which appears obvious to everybody except, it seems, lawyers (whether in-house or external) who are newly embarked upon an e-Disclosure / e-Discovery exercise. What, in the broadest terms, exists there as document sources? What servers, PCs, BlackBerries, tapes or whatever exist and might hold discoverable information? You need a map. As Tom puts it in his fourth point:
Know where your data lives: you can’t find data to identify, collect and preserve if you don’t know where it lives. So get your IT folks and create a map of your network location, custodians, operating systems and programs. Make lists and descriptions of data amounts.
Why? Because the map shows us how to go to places we haven’t been to before without getting lost. Plus they are incredibly useful in court to show a judge the complexity of your data collection problem.
Those last words may sound a touch defensive, somehow casting the judge as ready to pounce at the slightest derogation from your duty. Much of the complexity may fall away once you have sketched out what exists which matters. Under the UK rules, the map, whatever its form, is a necessary ingredient for the discussions required by paragraph 2A.2 of the Practice Direction to Part 31 CPR which requires that difficulties or disagreements are to be taken to the judge, if possible at the first case management conference. At the moment, it is left implicit in the practice direction that you have such a map – how can you discuss sources if you have not identified them? If the proposed new practice direction, with its e-Disclosure Questionnaire, passes into the rules, the requirement for a map will cease to be implicit and become compulsory.
The explorer analogy can be carried further as a parallel to the opening stages of electronic disclosure or discovery. A journey involves decisions which include, for example, weighing the shortest route against the fastest or the easy journey against the one which is either very difficult or wholly impractical. Roman road builders and canal makers alike chose to go round the mountains rather than across them (there are exceptions, of course – Hannibal and those bloody-minded Victorian railway builders went over or under mountains with tactical surprise or commercial advantage in mind which outweighed the risk and expense involved).
Those decisions parallel the factors which a lawyer weighs in deciding which of the things on his map are worth handling and which are not. You need a map, coupled with an assessment of value and an estimate of costs in order to make decisions about what is worth doing and what is not.
There is more to this than mere defensiveness. The lawyer who knows what his sources are and has made a reconnaissance as to what is in them and what the extraction costs might be, is in a position to shape disclosure as he wishes. He has the basis for argument with opponents and a means of illustrating that argument to the judge if that proves necessary. This is a matter of tactics as much as anything else – not tactics in the aggressive, non-cooperative sense which the CPR rightly deplore, but tactics in the sense of a plan to be on top of the facts and the timetable, to say nothing of costs. If you are on top, your opponent is not.
This language of exploration and cartography is much used by data collection experts to describe the value they bring to the early stages of a discovery exercises. Ian Manning of Raposa Consulting uses the expression “data universe” to signify that the first overview of everything from which the potentially discoverable material will come. Martin Baldock of Stroz Friedberg in a recent article in the Financial Times Clock is ticking for litigants as judges wise up to IT brings in the explorer parallel in the context of the gap between what is actually recoverable and what judges and lawyers might assume to be possible. He says:
The scale of what can be discovered is not always appreciated: knowledge of the extent of the evidence landscape is limited.
It is usually only computer forensics experts, or companies that have been involved in frequent litigation, that have a complete view of what can be discovered. Others, such as judges and lawyers, are much like historic sponsors of explorers. They must rely on the “explorers” word for what is out there – and if this is the resident IT manager who focused on supporting the business rather than investigating it, the true extent of it may be unknown.
This extends Tom O’Connor’s point about using the IT department to provide the map. Even they may not know what the full scope of the data universe is. Martin Baldock goes on to talk about the “potential conflicts [which] can be set up between broad collection, a narrow disclosure, cost and proportionality”. The subtext is that it is impossible to distinguish between unreasonable demands made for tactical purposes (on the one hand) and easily complied-with obligations (on the other) if you do not have some understanding of what is involved, a map and the equivalent of Sacajawea on your side.
All this is easily misunderstood to mean that you must collect everything and demand of your opponents that they do the same. That is not what I am saying, nor is it the aim of Tom O’Connor or Martin Baldock to encourage you to think so. The point of the map and the guide is to enable you to make decisions as to value, cost and proportionality and, just as importantly, to communicate those decisions to opponents and the court.
You can mine some of these explorer stories for other e-discovery parallels. Scott took the wrong equipment (too many ponies, not enough dogs), started late in the season, ran out of rations and died (starting too late with the wrong kit, running out of resources and coming to a bad end – does that remind you of anything?). Doctor Livingstone’s searches brought him to what he thought was the Nile, but what he found actually went the wrong way (so much evidence does that, doesn’t it – goes the wrong way, I mean?). Shackleton’s ship, Endurance, got stuck in the ice and sank, and he is honoured more for his survival than for anything achieved by the exploration (substitute the name of any case you have lost despite magnificent efforts). Those who opened Tutankhamen’s tomb were thought to be cursed (like opening that cupboard of unlabelled backup tapes). Sir Walter Raleigh made exaggerated claims as to the fabled city and the gold deposits which he was seeking, brought back only tobacco and potatoes, and lost his head after attacking Spain with whom England was not at war (again, you see some parallels with litigation – the wrong search strategy returning stuff you didn’t want and picking a fight with the wrong opponent).
It comes down to this. Courage, enthusiasm, great endeavour and huge ambition are no substitute for a decent map. Sacajawea, one assumes, was not au fait with the political purpose of Lewis and Clark’s expedition, but she knew how to get to the destination. Lewis and Clark knew what they were looking for but could not find it without help. Tom O’Connor’s example illustrates well why lawyers and IT departments must work together.
This is wholly irrelevant, but mention of picking fights with the wrong opponent brings to mind a happy coincidence in two disparate events reported last week. Somali pirates attacked a ship and found too late that it was a French warship. In Swansea, two yobbos had a go at mugging a pair of women out for a walk, to discover that they were cage fighters on their way to a cross-dressing party. Time spent in reconnaissance is seldom wasted, as they say in military circles, and that applies in electronic discovery as well.