By Tim Rollins
In the run-up to E-Discovery Day, I’ve had an opportunity to talk with several industry experts, thought leaders, executives, and educators who will be participating in today’s festivities. These conversations have been great opportunities to find out about so much of what makes this field exciting and interesting:
- The nexus between the legal industry and communications and information technology
- The rapid growth of the e-discovery industry over the past two decades
- The constant evolution of e-discovery practices and technology
Now that E-Discovery Day is here, I’m excited to share the final interview I’ve had, with George Socha, Esq., Managing Director in BDO’s Forensic Technology Services practice and Co-founder of the Electronic Discovery Reference Model (EDRM). Few people can match his expertise and historical perspective on the theory, practice, and business of e-discovery, so it was a pleasure to speak with him briefly about his background in e-discovery, the history of the EDRM, and E-Discovery Day.
George will be participating in an “Ask the Experts” panel sponsored by Exterro, EDRM, Brighttalk, and PinHawk LLC titled, “How Do I Collect That?” He’ll be joined by Craig Ball in this conversation at 2:15 pm EDT/11:15 am PDT, focusing on strategies and tactics for collecting a variety of data types during e-discovery.
Below are lightly edited excerpts from our conversation last week.
Q. How did you get started in e-discovery?
I got thrown into E-Discovery against my will. At the time, I was a practicing attorney who also had oversight responsibility for the use of technology at the law firm I was at. Because I had that, when we had a matter where e-discovery was rearing its head—one of the very first ones we encountered in the early '90s, maybe '91—the attorney running the matter called me in and said, "You know about computers. Fly down to Kansas City and take the deposition of the IT director. Find out all about their computer systems." I said, "I don't know the first thing about that." He replied with something to the effect of, "Don't worry. It'll be fine."
I took the worst deposition of my career, bar none, and that's what got me going in e-discovery. After that, I could not extricate myself, try as I might. So, I finally said to myself, “Okay, I give. This is what I’ll do full-time.”
Q. Did you have a background in computing before you entered the practice of law?
Yes and no. I took my first programming class, it was a one-month long class, in Basic Programming, and a second one in Advanced Basic and PASCAL programming, during my freshman and sophomore year of high school. All through high school I wrote computer programs for fun. I had nothing to do with computers at all in college and the same was true when I headed off to Peace Corps, when I lived in a place with no electricity to say nothing about computers.
But I came back to the U.S. in 1983 and the world had changed while I was gone. PCs had appeared and became popular. I did my law school applications all using WordStar and merge functions. I headed off to law school, and as quickly as I could got involved in the Legal Aid Clinic. At the same time, IBM donated a half dozen PCs to the Cornell Law School, and the Dean handed them over to the head of the Legal Aid Clinic. He turned to me – I was one on only a few law students with a computer – and asked what might be done with them. I build a sneakerware matter-management system for the Clinic.
Shortly after I arrived at my first firm, I brought my Mac into the office, feeling I could be more efficient with that than with a Dictaphone. In short order two things happened. First, a steady stream of senior associates and junior partners came into my office, shut the door, and told me to lose the computer; no one would take seriously a lawyer with a computer. Second, and in part because I had that computer on my desk, I got pulled into the largest set of cases the firm would handle. From there, I was given responsibility for oversight of the firm’s use of technology and, well, we know what happened.
Q. Can you talk about the impulse to develop the EDRM and the organization around it?
My colleague Tom Gelbmann and I had been conducting a survey of the E-Discovery market. We focused on three core questions: who were the leading vendors, how much money was likely to be spent, and what issues vex people the most? And as we conducted the survey, we could tell there was no agreement whatsoever as to what this thing called e-discovery really was, so we decided to start what we thought would be a one-year project to come up with some basic definitions and recommendations on fundamental steps. We weren’t sure what to call it, but “reference models” were something Tom was familiar with from his IT background, so we called it the Electronic Discovery Reference Model.
We contacted people we knew to be interested in what today we call e-discovery and at our initial meeting in May 2005 had maybe 35 people congregated in a conference room in St. Paul, MN. We put up a diagram on the screen…
Q. Looks familiar. :)
Yes, but this is not the one we showed at the meeting; bonus points to those who can locate the one we actually used. Tom and I didn’t think the group should adopt the diagram we were showing them; rather, we just put it up as an example of what a visual representation might look like. It had started out as a workflow of the approach to e-discovery I and others were using, with maybe 200 boxes in it, a bunch of decision points, and so on, but I had kept refining it and honing it down until it had nine boxes, several bars across the bottom, and a bunch of arrows.
The folks in the room said, "Our work is done. Get rid of the bars across the bottom, lower one box, raise the other, and call it a day. Now let's figure out how to describe these steps and what to recommend to people about how to do it."
Q. It’s had amazing staying power.
I think the reason it's had staying power is that it wasn't really trying to say, "Here's something new and different." It was a distillation of what I had done and what I had learned from others over the previous decade, so it reflected actual practices. The idea was to give people a conceptual framework that would break this monolithic e-discovery thing into more manageable pieces and through that allow people working on e-discovery to have a common language. I think a large additional part of why the model caught on was that it just happened to come along at the right time.
Q. Why do you participate in E-Discovery Day?
It’s a great way to get people to focus on e-discovery related topics at the same time, where they can participate in the conversation from their desk, rather than having to travel to a conference. It’s a way to get e-discovery education for free—and we need all the education we can get in this area.
Q. You’ll be speaking on a webinar titled, “How Do I Collect That?” What data types do you think e-discover professionals still struggle with today?
Many people feel they have a pretty good handle on email and office files. Setting those aside, there's a long way to go with everything else. One of the most challenging areas right now is how to get at, and what to do with, the content from mobile devices. I think that's going to be an area that gets a lot of attention over the next couple of years for the very simple reason that because we live our lives on our mobile devices, they are a key place to go if you want to find out what someone did, wrote, said, and in some ways even thought.
Mobile devices contain many different data types and are gateways to yet other types via apps people install on their devices. If you want to know where they've been, how many steps they've taken, who they've been talking with or texting, patterns of behavior, whether they were where they say they were when they said they were and doing what they said they were when they say they were doing it, there's never been a better source of that information than mobile devices are now.
At the same time, the potential for access to this content raises a host of privacy and security issues that we are only just beginning to tackle and which deserve much more attention moving forward.
I'd like to close this blog by thanking George for taking the time to answer these questions and more importantly for participating in E-Discovery Day 2018! Please sign up for his Ask the Experts webinar titled, “How Do I Collect That?” starting at 2:15 pm EDT / 11:15 am PDT if you haven’t already! And if that time doesn't fit in your schedule, stop by the E-Discovery Day website and find a live event or webinar that does.