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October 09, 2008

Goggles offer "I" Protection Missing in EDD

Mail_goggles_4 When I read about Google's new "Mail Goggles" utility, I wondered if the folks in Mountain View were playing one of their famous April Fools Day pranks out of season.  Google Goggles (yes, like protective eyewear) requires you to rapidly solve five math problems before you can send drunken e-mail on Friday and Saturday nights.  If you get stinking and stupid on a different schedule, you can adjust the program to your personal Oktoberfest.  You can even set the level of difficulty, in case you work on Wall Street and numbers aren't your strong suit.

Imagine that, a breathalyzer for e-mail!

What does this have to do with E-discovery?  I thought you'd never ask.  Read on....

For a long time, I've argued the need to restore the "power of place" to ESI, especially e-mail.  The power of place is what made discovery so relatively easy in the days before personal computing.  Back in those ancient days, when dinosaurs roamed the Earth and male lawyers wore vests (heckfire, I miss vests), requests for production didn't require you to amble from pillar-to-post looking for every document that contained particular words.  Instead, you went to a file room, a cabinet, drawer and folder to locate material responsive to the request.  You didn't look in every drawer because you didn't have to: information had a place, and you kept it in its place.

Before you hop back into Doc Brown's DeLorean, stop by the copy room circa 1985.  To make a photocopy, you have to key in a matter code.  It was a minor pain, but it greatly simplified cost accounting and the powers-that-be didn't mind a little transactional friction if it turned the copy room into a profit center.

Fast forward to the waning days of 2008.  Corporate America's pervasive, unbridled use of e-mail insures that the most relevant and revealing evidence in many cases smolders in someone's electronic Inbox.  Worse, lawyers and clients seeking advice so litter everyone's inbox with privileged and confidential communications that an estimated 75% to 90% of e-discovery costs go to paying lawyers to be sure privileged e-mail isn't produced.  Those aren't my numbers--I heard them last week at an EDD symposium in Denver--but if they're even close to accurate, shame on all of us with Esq. after our names.

If only companies could reliably assign certain e-mail a place when it's transmitted.  We wouldn't need many cubbyholes to slash review costs, maybe just "personal" and "privileged." What if you couldn't send a message before you characterized it within the company's data taxonomy?  Items tagged as "personal" aren't stored at all, but a copy is automatically forwarded to the employee's designated personal account. Items tagged as privileged are segregated and reviewed by counsel when the subject of a discovery request.  The rest doesn't go through any privilege review, but is produced under a clawback agreement, its responsiveness determined largely by lower cost mechanisms meeting Victor Stanley standards.

Remember, doing it this way saves the company millions and delivers an immediate payback in terms of organization and efficiency, so there's plenty of incentive to do it right.

So here's the Google Goggle e-discovery question: Is a drunken e-mail on a Saturday night the only place where a little transactional friction may save the day?  Doesn't the desire to keep secrets (especially the attorney-client privileged kind) and the horrific cost of ginning out those secrets require we do more than click "Send" now and worry about it later?


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Thanks for challenging us to think Craig. To your or anyone else's knowledge are there any firms that are effectively doing this today - i.e. self classification before sending (vs. automated classification before and/or after hitting the "send button"). If so - what tools are they using?

While I am a firm believer in the benefits of automation - its the "pause and think" before you send that appears to be one of the best "speed bumps" for helping facilitate disciplined communications.

The short answer is I don't know. A time or two, someone has come up to me after a speech and said, "we do something like that now;" but I can't tell you who or how. My sense is that, until Microsoft solidly builds it into its Exchange environment and IBM into Domino/Notes, it's not going to happen. They won't build it until customers demand it, and Users equate friction with decreased productivity. "Umm, yeah, Peter, we need to talk about the new coversheets on your TPS reports."

Leadership on this issue must start at the top. The benefits must be made demonstrable to users and--more to the point--the policy has to become practice...with teeth. A lot of workplace changes start out by being reviled and ridiculed but find acceptance as it dawns on employees that top brass are serious and failure has consequences.

WorldDox does this now with it's DMS app and I believe the other DMS apps are following suit can add email to your DMS profiling and make it mandatory. Easy enough to do but as Craig says you need top down leadership.
At a recent CLE I did at an ACC meeting down here in New Orleans, about 20% of the audience responded affitmatively when I asked if thye wre moving in this direction. I took that asa positive sign that the enterprise world at least get's it.

Craig, great idea. I think such a system would have many benefits, and would be worth the cost. Still, some challenges remain: such a system relies on every employee to categorize correctly within a company's taxonomy. Whether an email is privileged can be debatable among attorneys, so the question is even more difficult for non-attorney employees within the company.

If the taxonomy included more than "personal" and "privileged," the tagging of emails would be as diverse as the employee population. What a sales representative sees as an "investment," an accountant might see as an "expense."

Maybe there is a way to address these challenges. Any ideas?

Dear Dave at Electronic Discovery:

Every point you make is spot on, but aren't they the same risks we faced with paper records? People can misfile and miscategorize information using any medium. The taxonomy for the accounting department might not be the same as the one for marketing, but presumably each would employ categories that employees are trained to understand and apply in a reliable way.

Can we afford to wait for the perfect system?

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