Sharon D. Nelson, Esq. is president of the digital forensics, managed information technology and cybersecurity firm Sensei Enterprises. Ms....
John W. Simek is vice president of the digital forensics, managed information technology and cybersecurity firm Sensei Enterprises. He...
In this episode of the Digital Detectives, board certified trial lawyer Craig Ball talks with Sharon Nelson and John Simek about information technology competency and the 2016 Georgetown Ediscovery Training Academy. Craig explains that the bootcamp is six days of extensive work and requires a great deal of effort on the part of the attendees for weeks before they arrive. He asserts that the program’s hour long written assessment exam, three full days of technical training, rigorous reading requirements, and week-long “meet and confer” exercise are a few of the things that differentiate this curriculum from other continuing legal education courses. Craig also shares that the goal of the program is to establish a certain level of competency and fluency in e-discovery and digital evidence and to help cultivate a passion in individuals interested in these fields. He continues by stating that lawyers graduate lacking the basic skills that are necessary to teach themselves what they need to know about information technology and this is why programs like this are so important. Craig analyzes the legal education system, the expectation of apprenticeship, and how many of the most seasoned lawyers know little or nothing about electronically stored information. He closes the interview with a discussion of where the legal profession will be in 10 years regarding tech competency and a reflection on his career today.
Craig Ball is a board certified trial lawyer, certified computer forensic examiner, law professor, and electronic evidence expert, who limits his practice to serving as a court-appointed special master and consultant in computer forensics and electronic discovery. He has served as the special master or testifying expert in computer forensics and electronic discovery in some of the most challenging and celebrated cases in the U.S.
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The 2016 Georgetown Ediscovery Training Academy
Intro: Welcome to Digital Detectives, reports from the battlefront. We will discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches, not theory, but practical information that you can use in your law practice right here on the Legal Talk Network.
Sharon D. Nelson: Welcome to the 69th edition of Digital Detectives. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises.
John W. Simek: And I am John Simek, Vice President of Sensei Enterprises. Today on Digital Detectives our topic is Georgetown eDiscovery Training Academy 2016 and the Challenge of eDiscovery Competence. We are delighted to welcome as today’s guest our longtime friend Craig Ball.
Craig is a Texas lawyer living it up in New Orleans, is a peripatetic presence in legal eduction around the globe. Craig tried lawsuits in Houston for 25 years before joining the law faculty at the University of Texas in Austin, and limiting his practice to serving courts as a special master in computer forensics and electronic discovery.
Craig has delivered more than 1,700 speeches and papers on forensic technology and blogs on topics of interest to lawyers and litigation support at HYPERLINK “http://www.ballinyourcourt.com” ballinyourcourt.com. Thanks for being with us today, Craig.
Craig Ball: Thank you, John. Thank you, Sharon. It’s always a pleasure to be on Digital Detectives. I am very flattered to be on this 69th edition of same.
Sharon D. Nelson: Well, thank you. That means we will ask you again, you know, because you haven’t done it near enough. You just finished, Craig, teaching the 9th Annual Georgetown University Law Center eDiscovery Training Academy. I know that because I saw a lot of photos of my handsome friend, that would be you, and many other friends on Facebook of course. But for some people, they really don’t know much about the Academy, so can you tell them what it is and tell us how this year’s Academy went?
Craig Ball: Sure. The academy is a labor of love and while I am someone who has been involved in the Academy pretty much since its — well, actually from its inception, its founding, it was revamped probably about five years ago in order to be an intense boot camp, six days of working essentially night and day along with a number of exercises that have to be completed by the attendees, both down in the weeds technology exercises and a week long coached meet and confer exercise with a pretty substantial level of complexity. That is then brought before two sitting Federal Judges who critique the folks in attendance.
So we work people very, very hard, and the results we get I think are the hopes and dreams of mine realized. But I don’t want to speak just of myself; the Academy is taught by a small tight faculty present all week, of Judge John Facciola, recently retired from the United States District Court as a Magistrate Judge in the DC Circuit; Mark Sidoti, a lawyer with the Gibbons firm in New Jersey; Tom O’Connor, who I know is well-known to the both of you, a very dear friend of all of us, currently with a vendor and has been a — and I guess I can say the vendor, Advanced Discovery, and has been a huge contributor to forensic technology over many years; and last but not least, Maura Grossman, who is probably widely recognized as the leading authority on predictive coding in litigation in the United States.
John W. Simek: Well, Craig, that’s some really stellar folks that are involved in that, but can you tell our listeners kind of some of the details about the differences between the Academy and how that would compare to other CLE courses?
Craig Ball: Sure. While the academy is technically a CLE course, it’s put on by the Georgetown University Law Center CLE Program, Larry Center and his very skilled team; it’s different from anything that anyone knows as Continuing Legal Education.
To begin with, we require a great deal of effort on the part of the attendees for weeks before they arrive in terms of a huge body of reading they must complete. They have 10 independent exercises they have to complete before they even come on scene.
Then when they first arrive we test them and they go through an hour long written exam in order to establish a baseline for where they are coming in, so that we can more accurately measure where they are coming out. They then go through a series of further complex technical exercises. They go through three full days of pretty down in the weeds technical training to build a foundation of technical skill that’s so markedly lacking among practicing lawyers and many in litigation support.
Moreover, we are a very small faculty, and the five faculty members, it’s our requirement that the faculty be present all day, everyday in order to support the students.
So it’s much more like a university semester packed into a week than it is like any CLE course. If there is one CLE course in the nation that might be comparable, it would probably be the litigation boot camps put on by NITA. But I think we are every bit as rigorous as NITA, and to boot we bring in real sitting judges. Obviously a Federal Magistrate is there all week long and two sitting Federal District Judges are there at the end of the week to critique.
Sharon D. Nelson: Out of curiosity, do you ever have anybody wash out?
Craig Ball: Yes, absolutely. I would like to talk about that, but we have some who failed the course coming in, and a very, very, very, very, very few who have failed going out.
The thing we track most closely is a significant rise in their performance, and while I don’t want to let the cat out of the bag for purposes of Larry Center and his promotional team for next year, let me just say that we started with the most skilled and the most knowledgeable group we have ever had. And I put that down not only to the rising tide in eDiscovery generally over time, but also by the increased rigor we had putting more reading requirements and giving the reading materials for an earlier time than ever before.
So I think more arrived, knowing more of the material than those who in the past, obviously getting ready to be gone from their lives and their work lives for a full week in Washington DC, often they had no time to prepare until they actually arrived. Here I think many did prepare.
So it was a bit of compression in terms of the overall improvement. I can say that I saw scores improved for everyone, on average, more than 50% improvement over the course of the week. And while we have seen higher in the past, I think that’s still an out of the ballpark performance level. So we started with more knowledgeable people and they left still substantially more knowledgeable and capable than when they arrived.
Sharon D. Nelson: Well, it certainly sounds like a great success. I am also curious about how many people were there and whether you think the Academy can provide a solution for what you sometime call the competency crises in the Bar when it comes to eDiscovery and digital evidence.
Craig Ball: Well, we had 40 in attendance this year, which candidly I think is our smallest attendance ever. We have seen a drop in attendance over the course of the years that it has run. We started it with a waiting list and had to go above. We wanted it limited at 50, we ended up going to 55; we were at 60 I believe at one point, which is really an unwieldy number in my personal opinion. 40 to me is just a dream. It’s just the right amount of people to have a level of personalization and intimacy. It helps make the framing of the teams and the pairings very easy from a numerical situation, and I think it gives people more of a chance to perform.
You can’t hide in the Academy. You are going to be called on. You are going to be asked to participate. You just can’t come here, kick back and think you can sneak off for a week in Washington DC catching the monuments, because you have got a lot of work to do every night, you have responsibility to your team members and so forth.
So the second part of your question, is it a solution, it is a solution, it is one answer in the context of a challenge needing many answers, frankly Sharon. I mean, we can only train 40 people, and we are training the trainers in my view, and that’s not me speaking; that has been proven by the awards that have been showered on this program by ACLEA, the National Association for Continuing Legal Education, as well as by those who know Continuing Legal Education very well.
We are making a difference. I have seen my students from earlier academies now appearing on national panel speaking about eDiscovery. What I say to the students when we begin is, we are there to establish a certain level of competency and ability to communicate on these issues, but the goal is also to instill confidence, and in a few, and hopefully a somewhat select few, a real passion for this, that there will be some, there have always been some who have made this their career and they are the people that you are seeing speaking at the Georgetown Institute, becoming leaders in Sedona, talking at other matters, Legaltech, Tech Show and so forth.
So we really are meeting our goal, I think, of training the trainers, but it is too little impact. There are very few people who have the resources behind them to pay the tuition that Georgetown charges, and I might add that none of us on the faculty receive a penny for our time in teaching. We are all uncompensated volunteers, giving over a week in this program every year.
There are a few who have the money for the tuition, even though Georgetown provides a very ample scholarship support for many of the students, or to pay the cost of coming to Georgetown, many have had to take a week of vacation. So there needs to be much more than the Academy. The Academy I think certainly sets a standard and a high standard for what the core competencies of lawyers need to be and for setting a baseline, but it is not alone necessary.
What is necessary, if you will permit me to go on for a moment, is to recognize that lawyers emerge from law school being taught to think and act like a lawyer, and act like a lawyer doesn’t mean jumping up to say I object a lot, it doesn’t mean having a great catchphrase for a billboard; it means being able to find the law, analyze the law and apply the law. And we give lawyers in law school a very good grounding in that foundation of finding the law. They are thus well-equipped to teach themselves further law, to read law.
What we do not do, even as the lingua franca of information has moved from information on paper to information exclusively as electronically stored data, we have not taught lawyers any of the fundamentals of ESI, the fundamentals of information technology. So they lack the very basic competency and language skills they need to be able to seek out further useful information and teach themselves what they need to know about information technology. And that is the huge failing.
I have a philosophy that you give me two-and-a-half, three days with a motivated lawyer, any motivated lawyer, and I will teach them everything they need to know to be competent in eDiscovery from a technical standpoint and have enough of a grounding to be able to teach themselves all the rest they will need to know to keep up and to become expert. But no lawyer seems to have the inclination or the time to give it those three days.
John W. Simek: Craig, the personal computer has been around for 30 years now and I think pretty much everybody knows that that stuff is digital and I mean almost everything is virtually digital, very little starts as paper or goes that way, but with the PC and all this digital information that’s out there, why is information competency such a big problem for lawyers?
Craig Ball: There is a lot to that answer, John. It begins with a fundamental flaw in our educational system. As I said, we teach lawyers to think like lawyers, to act like lawyers, to find the law; we don’t really teach them the practice of law for the most part.
At best, you might do a little bit of clinical work, maybe some moot quarter mock trial in law school, but the expectation has always been that of an apprenticeship. The idea being that you will leave the law school unready to practice law, ill-equipped in many ways, but you will join an older, more seasoned attorney in his or her practice, and in exchange for literally or figuratively carrying their briefcases for several years, you will be gifted with the reality of law. You will learn how to take a deposition, interrogate witnesses, cross-examine, make an opening statement if you are a litigator and so forth. And of course I am speaking about in the context of litigation more than a business office practice.
In the context of litigation you learn to practice law on the job by watching seasoned lawyers. The problem we have here is that the most seasoned lawyers fail to try cases anymore, so you don’t have those skills being passed down, and more importantly, they know little or nothing about electronically stored information. So they have very little in the way of experience, competency and lore to hand down to younger lawyers.
But the most insidious problem is what I call the circle of competency. Lawyers and judges set the standards by which the competency of lawyers and judges is judged, and everyone in a position of authority, technically those tend to be the more seasoned and senior lawyers as we look around us, are loath to draw a circle of competency where they find themselves standing outside the circle.
And so they look at themselves, they say quietly, I am a great lawyer because I lead the Bar; therefore, I stand at the center of a circle of competency, I reach out and draw around me and wow, look, eDiscovery Competency is nowhere to be found, because if I required eDiscovery competency to be competent, I would be declaring myself incompetent, and human nature suggests that it is the rare person who is ever going to do that when they have to earn their living from the practice of law.
And so since they control the authority, they cannot say what they don’t know is crucial to being competent. If it were something important they would already know it is the attitude. And that is really a problem.
We are seeing some chinks in that armor, and it is armor, because think about it, everyone in the game has an incentive to keep it that way. The judges don’t want to be incompetent, the senior lawyers don’t want to be incompetent, the junior lawyers don’t want to be incompetent, everyone wants to believe they are in the circle, and until we can step aside and realize we don’t belong in the circle of competency if we cannot deal with the most prevalent form and most powerful form of persuasive evidence, we will never have a situation where people will draw the circle the way it belongs, and accordingly, we will never have a situation where we devote the resources necessary.
I call it the Manhattan Project for eDiscovery. It’s basically finding the resources, enlisting associations, enlisting CLE providers, enlisting vendors, enlisting law schools certainly and coming up with a core curriculum of what everyone needs to know about the fundamentals of ESI.
Now, obviously the vendors have, and I know you and I in a certain sense are kinds of vendors, we are consultants and so forth, we have a benefit that flows to us by lawyers remaining ignorant and incompetent. They depend on us and they pay us. That’s not a good situation. It doesn’t incentivize us as it should. Lawyers who don’t know it are quite content to keep strapping on an expert and hiring a group of vendors so that they can continue to look like they can steer the ship.
So we are having people who are paid more determine what should be done in ways that would lower the cost to clients. It’s an inherent and insidious conflict of interest that we are very adept with our ginormous lawyer brains and great persuasive skills, we are very adept at finding ways to rationalize away that conflict. We have to get past that. And I am not sure what it’s going to take to be honest.
John W. Simek: Well, before we move on to our next segment, let’s take a quick commercial break.
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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is Georgetown eDiscovery Training Academy 2016 and the Challenge of eDiscovery Competence. Our guest is Craig Ball, one of the rock stars of the eDiscovery and digital forensics world, who speaks around the globe on those topics and writes on them often, with a rapier wit and a compendium of knowledge second to none.
John W. Simek: Craig, before we went off to the break you mentioned about where some attorneys that aren’t really that competent with all this digital information that they might go our and hire experts and all that kind of stuff. Why isn’t that a solution to hiring folks like yourself or ourselves?
Craig Ball: Well, the fact of the matter John is that competent people cost money and the more competent typically, the more money they can charge in the marketplace. Unfortunately, most cases that are in litigation lack budgets to be able to bring on an expert or a vendor. Most cases are relatively modest size cases, about 80% of those are in State Courts. So while I would love to be able to say, hire Sensei Enterprises in every case and bring me on as a consultant, et cetera., the reality is only a relative paucity of people in the world have those kinds of budgets to bring on experts.
So lawyers are going to have to learn to do some of these ministerial tasks themselves. Just as they used to have no problem making a photocopy or going and getting some information from a client file, they have to bring those skills into the 21st Century and have no problem competently making a digital copy that preserves information and competently retrieving data from a client in a way that doesn’t spoil or alter the electronic evidence.
Sharon D. Nelson: I have heard some people say that it’s just a matter of time until the younger lawyers who have grown up as digital natives, they are going to ascend to being the litigators into leadership in their law firms and this matter of competency is all going to be behind us. Well, I think that too. What do you think?
Craig Ball: Well, I do think the Grim Reaper is the answer to many of the problems. Let’s call it what it is at this point, the dying out of certain dinosaurs. But what followed the dinosaurs presumably were the Neanderthals, and the young people are certainly much more adept at seeing the importance of electronic information. They are more ready to look forward and use it. But the skill set that allows them to use the latest social networking tools or the latest gadgets are by no means the same skill sets they need to be able to identify, preserve, protect, collect, process and ultimately review and produce electronically stored information.
eDiscovery is its own specialty and they are going to need to know the aspects of that specialty that lawyers need to understand, just as older lawyers lack, not only an appreciation of the importance of ESI generally, but all of the specifics too.
John W. Simek: Craig, tell us a little about what you thing the core curriculum that lawyers should have and how much time do they need to gain some sort of basic foundation in digital evidence?
Craig Ball: I have spent a lot of thinking about that in the last year. I worked with Judge John Facciola on trying to figure out what that is, and it has been very helpful. I have a sense that there is a certain understanding of technology that is necessary. I think we can all quickly identify key cases and concepts of spoliation, cross-border issues, forms of production, and so forth. The law of eDiscovery is the easiest part of it; the hard part is understanding things like hashing, data structures, databases, forms of production in terms of why one has something or lacks something, what you surrender, what you gain in certain forms.
Search technologies are a very significant challenge. Search is a science, but lawyers treat it like some magical art, but yet lawyers do it very, very badly. Review as well and advanced analytics, lawyers think they do it far more ably than really looking hard at the results suggest.
There are results that suggest that lawyers miss two out of every three of the documents that they review, which is to say that about a third of what they mark as relevant is not in fact, and about a third of what they mark as not relevant is, not to the extent that those numbers hold up under scrutiny and obviously none of us think that applies to us personally. Well, then, we are very poor at what we need to understand, and those fundamentals include things like understanding something about operating system, file systems, some of the fundamentals of computer forensics, how data is stored, what is metadata, what types of information are embedded in files, what is a file table, these are things that are everyday knowledge to people like the three of us. And I don’t suggest that lawyers need to become forensic technologists, but just saying you don’t have to be perfect is not saying lousy or inept is okay.
There is a fundamental basic knowledge that can be acquired as I say in about two to three days. It would take a lawyer more time to learn to drive a car than it would take them to learn to be adept in electronic discovery.
John W. Simek: So where does Craig Ball think we are going to be on this subject in five to ten years?
Craig Ball: Unfortunately, five years is a very short-term threshold for lawyers. Nothing happens very fast in the legal profession, and we have gotten very good at slowing down our world so we don’t get to see how fast the real world is operating. In five years we are going to be, what, perhaps 10 times the volume, 20 times the volume of electronically stored information. These are the good old days. Today we only have to deal with a handful of forms of information; databases, email systems, network shares, social networking, local storage, that pretty much wraps up the universe of eDiscovery in 2016.
Five years from now we are going to be looking back after the Internet of Things and other sources have taken off at the kind of ballistic rate that they are traveling now, and we are going to look back at 2016 and say, boy, we had it really good back then. We didn’t have to deal with Alexa. We didn’t have to deal with thermostats and personal body cams and computers in cars that are extremely sophisticated.
I mean, I just said the word Alexa and she is talking to me. It’s same today compared to how it’s going to be in five years. So seriously, grab the tiger’s tail now folks because it’s going to get — you are only going to have the claws coming at you in five years.
Sharon D. Nelson: I think you are right. I just read Gartner’s report about the Internet of Things and what it’s going to do to us, and I think it is going to be fairly phenomenal in terms of both cybersecurity, eDiscovery, all of this is going to have a tremendous interplay.
But to move us to a subject that, people are so curious about you Craig, on a personal level they have been following you for years, they have been reading your writings, they hear you speak, and you have really successfully reinvented yourself several times. What is your professional life looking like these days and what do you want your professional future to look like?
Craig Ball: Well, my professional life these days is in some ways about the same as it has always been. I am doing more special master work than I ever have before, and I like that work very much.
I am trying to devote more time to doing things with my friends, to doing events. I just got back from Mississippi. We did a tech train ride on the City of New Orleans, up to Mississippi and presented, four of my friends, we presented at the University of Mississippi, Ole Miss. And that’s the kind of thing I am liking doing is working with an ensemble of people that I really like and respect, doing less of the just flying in for a couple of hours, giving a talking head speech and flying out.
I feel the tick-tock of the hourglass, quite frankly. I mean, I am going to be 59. It’s not like I am at death’s door I like to think, but I do feel the time is fleeting, and as a consequence of that I want to use the time I have left professionally to do things with people I really enjoy being around and who I will still learn from, and to do more to help the next generation to become competent and confident and passionate about these things, so that if I have a legacy other than my own children I would like for it to be a lot of lawyers who later in their life say, I went into this practice and I did not really understand electronically stored information and I heard this guy and that woman and then these people, and I got it, and it transformed me.
For me, it was becoming a forensic examiner, that was the transformative thing in my life that made me understand data at the micro, as well as at the macro, and I would like to see others have those aha moments, and if I can help through philanthropy or donation of time or expertise or just encouragement in making that happen, that’s where I would like my waning years to be.
Sharon D. Nelson: I can’t imagine anything like waning years for you, Craig, I really cannot. But we want to thank you so much for joining us today.
I saw of course the tech train going to Ole Miss, on Facebook once again. So that’s how I follow you about. But again, you are doing a wonderful thing with folks you enjoy a lot and who are great teachers themselves. The Academy is a great example of giving back to the profession. It’s not something you are paid for and there you are giving those six days and nights, and that’s really a lot. I think it says a lot about who you are that you are willing to do those things.
So for the record, I think you have already earned your legacy and don’t need to worry about it. But thank you Craig for joining us yet again today.
Craig Ball: Well, coming from the two of you, who have given so much back in this area, and continue to do so, thank you very much. That’s very kind.
Outro: Well, that does it for this edition of Digital Detectives. And remember, you can subscribe to all the editions of this podcast at HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or on iTunes. If you enjoyed this podcast, please review us on iTunes.
Sharon D. Nelson: And you can find out more about Sensei’s Digital Forensics Technology and Security Services at HYPERLINK “http://www.senseient.com” senseient.com. We will see you next time on Digital Detectives.
Outro: Thank for listening to Digital Detectives on the Legal Talk Network. Check out some of our other podcasts on HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com and in iTunes.
Sharon D. Nelson and John W. Simek invite experts to discuss computer forensics as well as information security issues.
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