Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Craig Ball on Special Masters in E-Discovery
September 17, 2012
We had a splendid time as faculty members at the Intermountain eDiscovery conference last week. Thanks to the folks at Orange Legal Technologies for a great conference and special thanks to Rob Robinson for taking such good care of us before, during and after the conference. We always enjoy teaching "On the Digital Trail of the Craigslist Killer" and the audience appeared to be having fun too.
One of the highlights of the conference was the morning keynote by our dear friend Craig Ball. Craig spoke about the e-discovery perspective of the Special Master, who generally comes upon the scene when everything that can go wrong has gone wrong. There is no trust and lots of finger pointing. The parties are like warring siblings playing the blame game. As Craig says, the role of Special Master has a lot to do with parenting. Here is part of his description of what a Special Master does:
- Enforce civility and break the communications log jam
- Require candor, diligence, metrics and verification
- Require technical liaisons with whom the Special Master can speak directly
- Listen, question, study – so the Special Master is sure he knows what he is doing
- Seek consensus where possible – and make decisions where it isn't
- Maintain transparency of the process and ensure rational outcomes
- Knowing that a lot went wrong, figure out whether the dog got kicked or stumbled over
If that last bullet point raises your eyebrows, the reference is to a quote by Oliver Wendell Holmes, Jr. "Even a dog distinguishes between being stumbled over and being kicked."
Recognizing that a lot of bad stuff happened, did it happen because of ignorance (common) or was it willful? How the Special Master proceeds will have a lot to do with the answer to that question. As Craig wryly points out, 70 cents of every dollar spent in e-discovery has been shown to be wasted, mostly because lawyers don't know what they are doing.
No one can ever accuse Craig of not speaking his mind plainly! Great session Craig – and the dinner we had with you and David Horrigan was the highlight of our trip. Poor David got stuck with a pack of cruiseaholics!
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