Spring arrived eleven days ago.  You probably didn’t notice because there’s no official celebration for the event.  There are no ceremonies or gatherings of random people to formally recognize the time of year when everything begins anew.

For millions of baseball fans, today marks beginning of spring.  Today is the opening day of a new season and for the next six months people will gather with old friends and new; at stadiums, restaurants and bars to cheer on their favorite team. 

But for major league umpire Jim Joyce, the 2011 season is likely to be one of redemption.  You see, last June Joyce blew a call on the last play of a game between the Detroit Tigers and Cleveland Indians.  The mistake cost Tigers pitcher Armando Galarraga a perfect game and a place in baseball history.  Prior to Joyce’s call, Galarraga had retired 26 consecutive Cleveland batters.  Then, the last batter of the game hit a routine groundball to first but Joyce mistakenly called the runner safe.  Television replays showed that Joyce missed the call.

“I just cost the kid a perfect game,” Joyce said in a postgame interview.

Of the four major sports leagues, baseball is the only one that doesn’t employ some form of instant replay.  Despite the rapid advancements of technology baseball relies exclusively on the judgment of humans to make every call in every game.  Human error can cost a team millions of dollars, or worse, a World Series championship.

So what can eDiscovery professionals learn from baseball?  Well, companies and legal professionals involved in eDiscovery can’t rely exclusively on human judgment or technology to make decisions.  They employ the use of both.  Technology can sift through volumes of available information but only a human can review the data and make the close calls.

eDiscovery professionals can’t live in a world of either/or – either rely on technology or humans.  Both play a crucial role.  Technology is, without question, the best way to cull through volumes of information but it’s the human element, and how skilled they are at making the close calls, that distinguishes companies that perform eDiscovery well from those that don’t.

My guess is that if Jim Joyce had it to do over again, he would want to use technology to show him every camera angle and instant replay so that he could make the right call.  If he had it to do over again, he wouldn’t want to cost “the kid a perfect game.”

Are you doing all you can when conducting eDiscovery?

Let us hear your thoughts – about spring, baseball and eDiscovery.

Join the discussion.

Thirty years ago today Ronald Reagan was shot as he was leaving the Washington Hilton hotel.  All of the people inside the hotel were screened by the Secret Service, but a small group (that hadn’t been cleared) was allowed to stand fifteen feet behind the rope line.  John Hinckley Jr. managed to maneuver himself to the front of the group and as Reagan approached his motorcade Hinckley fired six bullets from a Rohm RG-14 .22 caliber blue steel revolver at the president.

Hinckley’s first shot hit White House press secretary, Jim Brady, in the head and the second struck District of Columbia police officer Thomas Delahanty in the back.  The third bullet missed wildly and hit a building across the street.  After hearing the first three shots Secret Service agent Tim McCarthy instinctively turned toward the gunman, spread his arms and legs and made himself a target and protect the president.  Hinckley’s fourth bullet struck McCarthy in the abdomen.  The fifth bullet hit the right rear window of the limousine and the six shot hit the armored car and ricocheted hitting the president in his left underarm.

All of this took place in 1.7 seconds.

All things considered, the president was lucky.  What’s remarkable about that day is how the Secret Service reacted.  McCarthy relied on his years of training, turned toward the gunman and took a bullet for the president.  Lead agent Jerry Parr shielded Reagan, pushed him into the limo and directed the driver first to the White House and then (after seeing blood) to George Washington Hospital where a trauma team was ready for the president’s arrival.

On that day everyone knew what they were supposed to do and acted accordingly. 

Companies that are involved with (or that could face) eDiscovery matters can learn something from how the Secret Service operates.  The Secret Service doesn’t leave anything to chance.  They evaluate threats and options, plan strategy and then execute.  Everyone has a role and specific area of responsibility.  A mistake could result in the death of a president.

IT and legal professionals need to create similar plans for eDiscovery before a matter hits.  Roles, responsibilities, options and procedures need to be identified well in advance so everyone knows what they need to do and how their role fits into the bigger picture.

You may never have to react in 1.7 seconds.  But is your eDiscovery team well versed on what to do if and when litigation hits?  Will your team work as cohesively and efficiently as the Secret Service?

Maybe not but studying their model for preparation, planning and execution can’t hurt.

The General Accounting Office recently issued a report saying that more than 600 severely wounded soldiers from the Iraq and Afghanistan wars have yet to receive life-long healthcare services due to poor staffing and communication issues between the Pentagon and Department of Veterans Affairs.

According to the GAO report, there is no mechanism to identify, classify or categorize a “severely wounded, ill or injured” soldier so instead of receiving treatment for their injuries they get lost in the military healthcare system or are left to fend for themselves.  And even if a soldier is lucky enough to enter the life-long military healthcare system there aren’t enough resources to adequately manage all of the cases.

The problem was identified nearly fours years ago when a presidential commission recommended that the VA hire more case coordinators.  Since 2007, 20 coordinators have been hired to manage 600 cases.  The job requires the coordinators to work through a bureaucratic maze that includes the Pentagon, DVA, military hospitals, medical staff and patients.  Much of their work is done without basic tools such as a computer and telephone. 

Large, bureaucratic organizations with different priorities, jargon and procedures aren’t unique to government agencies.  I see it every day when I meet with customers to talk about their eDiscovery strategy.  Too often I watch IT and legal get together, maybe for the first time, and talk about an eDiscovery matter.  Their words might sound the same but the meaning of those words and subsequent actions (or intended actions) can be vastly different. 

Linguistics isn’t the only challenge that IT and legal face during an eDiscovery matter.  After all of the available information has been identified, searched and indexed it must be reviewed by attorneys or paralegals to ensure accuracy and relevance.  But like the VA, eDiscovery case review is fluid and it’s hard to adjust staffing to meet demand.

Sophisticated companies have partners who can provide document review services within hours to ensure that nothing gets overlooked and the most critical information is flagged for more thorough analysis.  The document review partners help law firms and general counsels smooth out the ebbs and flows of staffing requirements.

 Companies that are developing eDiscovery strategies could learn from the challenges faced by the VA case coordinators. 

 Will companies learn the lessons in time?

One can imagine eyes gleaming when a party learns that its opponent destroyed electronically stored information (“ESI”).  After much gleeful rubbing of hands fingers hit the keyboard and a motion for sanctions for the failure to preserve ESI is carefully crafted citing the opponents disregard for its discovery obligations.  The author may have a wistful thought that perhaps the merits may be avoided after all. 

Without further ado, the motion is filed and an oral argument is formulated emphasizing outrage about how in this day and age a party could be so cavalier about data preservation.  With the right decision, further discovery may even be avoided.  The motion does not address how the party has been harmed by this egregious act.  Indeed, res ipsa loquitur, how could they have not been harmed?

As United States Magistrate Judge John Facciola points out in Davis v. Grant Park Nursing Home, LP, 2010 U.S. Dist. LEXIS 118853 at *3 (D.D.C. Nov. 9, 2010), it isn’t so much the fact that data was not preserved that matters, but rather how much harm did this dereliction of duty cause the moving party that matters.  In striking plaintiff’s motion for sanctions without prejudice in Davis v. Grant Park, Judge Facciola writes:

“Prejudice to a party can only be examined by looking at all the information that is available, for only in that context can the nature and extent of the loss suffered be accurately gauged. Accordingly, it is premature to consider the question of sanctions until discovery ends and the Court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused.” Davis at *3.

One wonders whether Judge Facciola’s opinion hints at tacit approval of Magistrate Judge James C. Francis IV, ‘no harm, no foul’ opinion in Orbit One Communications v. Numerex Corp.,  2010 U.S. Dist. LEXIS 12333, 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010).   Only a subsequent analysis of the alleged prejudice based on a fully developed record would give us some insight into this issue.  But that motion will have to be filed at the right time, the end of discovery.

Two passenger jets landed safely at Reagan National Airport Tuesday night.  Big deal, right?  Well, actually it was.  The pilots aboard American Airlines flight 1012 from Dallas and United Airlines flight 628T from Chicago were unable to reach the control tower on final approach and were forced to land without instructions from officials at the airport.

The American flight aborted its first landing because it was unable to contact the control tower via radio.  Telephone calls placed to the tower at Reagan National by controllers from nearby airports went unanswered.  The air traffic supervisor admitted to falling asleep on the job.

When you think about the possible consequences, the incident is unnerving.  The lives of a few hundred passengers were dependent on the ability of the pilots and air traffic controllers to exchange instructions and information.

The interaction between IT and legal during eDiscovery is similar (although not nearly as dire) to that of pilots and air traffic controllers.  During legal matters IT and legal must work together to locate, search, cull and review vast amounts of data.  Often the teams work under tight deadlines and tremendous pressure.  A small mistake could cost millions of dollars.

I have the opportunity to meet with many of our customers.  The best have sophisticated eDiscovery policies and procedures.  Roles and responsibilities are clearly outlined so when a matter hits, the key members of the eDiscovery team know exactly what to do.  Some even run simulations each quarter so each member of the team stays up-to-date on process and procedures.

The pilots on both United and American flights spent hundreds of hours practicing different scenarios to ensure the safety of their passengers.  They knew their roles and responsibilities and were able to perform well under very stressful conditions. 

Does your company have processes and procedures in place so when that “uh oh” eDiscovery moment comes people know what to do?