August 01, 2012

E-Discovery: E-Discovery’s “Prime Principle” for the Rule 26(f) Conference

William Hamilton

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It may sound like the operational paradigm for a future human civilization, but the “prime principle” should be the prime directive for e-discovery disputes here and now.

The e-discovery prime principle is very simple. It holds that the original form of information that parties are exchanging in electronic discovery is a binary system, with data stored only in “off or on,” “0 or 1,” values.

Computers create, store, and transmit 98 percent of our society’s information. That percentage rises every year. Yet, most attorneys don’t have the foggiest idea how a computer works and therefore can’t comprehend the e-discovery prime principle.

The failure to grasp the essential operating principles of computers leads to conscious and unconscious violations of the e-discovery prime principle. Litigators violate the prime principle when they imagine that the document seen on the computer screen is a paper-like picture of something inside the computer ready to be printed. The image on the screen is nothing but millions of little lights (pixels) going on and off so quickly that the human eye sees illusory static images or moving objects on the screen. The computer screen is not showing a projected object.

That misunderstanding leads to unproductive debates about mysterious metadata and why more should be produced in discovery than that paper-like object inside the computer. Instead, e-discovery is about—and only about—exchanging bits (from binary digit) of information—millions and millions of bits. Eight bits become a byte. Bytes become kilobytes (1024 bytes), megabytes (1024 kilobytes), and gigabytes (1024 megabytes). A gigabyte of text that is printed to paper fills 30 banker boxes or, more graphically, the bed of a pickup truck.

But regardless of the volume, the information is only binary. A gigabyte of data is simply 8,000,000,000 (eight billion) on/off values typically stored in some medium that holds electronic charges.

We need a code to give meaning to the “on or off” bits and bytes. The keyed dashes and dots of the telegraph would have no meaning without Morse code. Years ago, the computer industry adopted the American Standard Code for Information Interchange, or ASCII, which gave each byte an agreed-upon character value. For example, the byte 01000100 (with the number 1 representing “on and zero representing off) is the capital letter “D” under the ASCII code. The small letter “o” has the ASCII value of 01101111, and the small letter “g” has the ASCII value 01100111. When you type the word “Dog” on your keyboard, the computer stores this as 010001000110111101100111. A human sees “Dog” on the screen because the computer then sends to the monitor instructions to light a series of pixels in a pattern that humans who can read English see as “Dog.” The computer does not think or know you are talking about a dog any more than a piece of paper knows about dogs when you write the word “dog” on it.

How does the e-discovery prime principle help? Let’s take an example: searching electronically stored information. Each alphabet letter or character is represented by a byte. The computer searches for words by searching for a series of bytes. A search for “lawyer” will not bring back hits for “attorney.” Hence the necessary debate about the right search tools. Does your search need fuzzy logic, which is the ability to recognize similar, if not exact, patterns of bits and bytes?

The current search rage is predictive coding. Predictive coding software runs various computer algorithms across the on/off binary values looking for patterns. It does not recognize responsive documents the way a human recognizes a responsive document; the software only recognizes patterns of electronic bits and bytes that it predicts may be a responsive document. Understanding predictive capability allows us to understand why sampling is critical to confirm the software’s predictions.

Make the e-discovery prime principle the starting point for your Rule 26(f) conferences. You’ll be surprised how much can be accomplished when everyone starts with the same foundational principle. The prime principle will also give the lie to any statements from the opposition about “not wanting to do e-discovery.” E-discovery can’t be avoided: Computer information starts out as coded bits and bytes. That’s the e-discovery prime principle.

William Hamilton

The author is with Quarles & Brady LLP, Tampa.