Browning Marean, Rounding Third & Being Thrown Out At Home

August 15, 2018

The 2 and Only

Later this week, Gayle and I will be heading to ILTACON18. And in making our travel plans, I began thinking of Browning. He and I had been going to ILTA conferences since they were VSLUG meetings, back when the two of us first met in San Diego.

Browning left us in 2014, right at the same time as an ILTA conference, and it still seems like it happened last week.  To say he was friend of mine doesn’t even begin to describe that relationship and his absence feels like how Shoeless Joe Jackson described getting thrown out of baseball in Field of Dreams: “it was like having part of me amputated”

Numerous people wrote about how they felt when he passed. If you want to capture the sentiment at the time I’d suggest you read Craig Balls tribute or that written by Chris Dale on his site  or the words of Ralph Losey.

I’d tell you to look at my thoughts at the same but since I wrote them for ALM, they were somehow grabbed by the fine folks at Lexis and put behind a paywall so you can only read what I wrote if you have a Lexis subscription. I refuse to give them a dime to read an obituary I wrote for my pal and I have posted the original at the end of this piece.

But here on the anniversary of his passing, I’ve asked a few of his friends to tell us what he meant to them.  I started, as I always do when looking for inspiration, with Gayle. She told me she always thinks about how he had a big smile and bigger hug when he saw her and how he always made her feel “part of” not just the conversation but the entire legal community.

Other thoughts came quickly:

“A mischievous sparkle in his right eye. More pithy sayings than any person has the right to know. Browning in the lobby with his Tilly hat and rain jacket, ready for a power walk somehow always ending at the best pub you ever wanted to visit.  And friends.  Friends everywhere.  Everyone knew Browning (no need for a surname).  Everyone wanted to be with Browning.  And everyone was special, truly special, to Browning.”

George Socha

“Browning is missed everyday by me and overall within Today’s General Counsel Magazine and Institute. As one of the creators of our “Exchange” interactive programs, we honor what he has helped us achieve and his contributions are recognized at the start of each of our programs.  A true friend in every regard of the word.”

Neil Signore

“Although he and I worked at competing law firms, for many years Browning had a huge positive influence on my career.  At a couple crucial junctures, he took the time to mentor and support me.  Especially when I co-chair conferences in a unique format that he pioneered, I miss him dearly.

Robert Brownstone

“ILTA’s scholarships in Browning Marean’s name are a fitting tribute to a man who inspired many of us who talk and write about eDiscovery. It was not just the law and practice – though there was plenty of that – but Browning was the best communicator I knew.”

“Browning showed that you can be interesting and light-hearted about serious subjects so that audiences absorbed knowledge without realising it. He went out of his way to encourage others, especially younger people, to take part in panels and webinars. He mixed naturally and easily with everyone from judges to the rawest recruit. I still miss him.”

Chris Dale

“It’s been four years since we lost Browning Marean.  It feels like forever…and yesterday.  I think and speak of him often.  Every day I feel his absence in the arc of e-discovery since his death on August 22, 2014.  Browning witnessed law’s transformation from esteemed profession to big business.  His career from local litigator to global presence was emblematic of that sea change.  Browning dutifully served the consolidation even as he mourned what it had done to his firm and to law practice generally.  Perhaps the monster snuck up on us for the very reason that good and decent men like Browning were its face.”

“I miss Browning’s face at the many events where he was a welcoming, warming presence.  His attendance was assurance that courtesy, camaraderie and mischief had also arrived.  He connected people and empowered them.  He bridged the old and new with a smile and kind word.  Often, I ask myself, “how can I be more like Browning?”  The answer always points in  a better direction.”

Craig Ball

“Browning was an excellent attorney, technologist, communicator and motivator. But as good as he was at all that, he was even better at being a human who celebrates life.”

Bill Speros

“Browning had a special gift. He was able to present e-discovery in a soft, approachable way. Of course e-discovery is difficult and important, but Browning also made us laugh and that encouraged everyone –lawyers, clients, professionals — to dig into together.  I recall his quip that he always had a defibrillator ready when discussing e-discovery costs with clients!  Browning made sure the weight of e-discovery was always lighter.”

Bill Hamilton

And this last remembrance is from Paul Weiner.  We read it at the Second Line for Browning that we did in New Orleans after his death.  Paul couldn’t make it but he sent this and asked that I read it … I did so on a balcony overlooking Bourbon Street with food and music and friends all around.  A real New Orleans funeral. I think Browning would have liked that.

The 2nd line hits Bourbon Street (002)

Paul wrote:

“I first met Browning through Laura Kibbe who had invited me to participate in a West LegalWorks conference.  When I asked Laura on what topic I would be speaking she told me: “Reach out to Browning, and he’ll take it from there.”

“When I first connected with Browning on the phone, we had the most wonderful conversation where he asked me all about myself and when he found out I was a voracious reader, gave me some recommendations of books to read.  He also briefly noted that my panel would be on the use of Special Masters in eDiscovery.  I asked whether we should prepare an outline and schedule some prep calls with the other panelists?  Browning’s response: “I don’t like my panels to ‘peak too soon’; we can get together at the conference.”

“Fast forward to the conference.  The night before: no prep.  At breakfast: no prep.  During lunch: no prep.  Because I am an über-“Type A” personality who over prepares for everything – especially public speaking – I was now getting nervous.  About five minutes before we were set to take the stage, Browning called all of us together and said, “By now you all probably have gleaned that I believe in ‘just-in-time preparation’.” Pointing at each of  us, he continued, “You’ll cover topic A, you’ll cover topic B and you’ll cover topic C.” We then went on stage … and Browning proceeded to ask each of us questions about totally different topics than the ones he had just identified.  But you know what?  The panel was GREAT.  DYNAMIC.  INFORMATIVE. Instead of pre-planned scripts and talking points, we actually had a dialogue with spontaneous interaction.  And because we were so engaged, the audience was as well.  Furthermore, because of Browning’s great skill as a moderator, there was never a lull in the conversation.  Although I may not have fully appreciated it, Browning knew each of us on the panel actually knew the subject matter and could handle this format, and we covered the essential teaching points that would have emerged had we prepped for weeks on end. ”

“While I am still a firm believer in (over) preparation, Browning taught me that oftentimes life is about “just-in-time” preparation,  both from a professional standpoint (like when a client calls with a pressing issue that needs immediate attention, or when a Judge puts you on the spot during oral argument, or when a witness opens up an unexpected line of inquiry that can turn a case during a deposition), as well as from a personal standpoint (like when a friend calls and needs your help, or when a family member has an unexpected moment to celebrate, or when your daughter walks for the first time and you take the morning off to laugh and play with her despite the pressures of your career). ”

“Just as importantly, Browning was a total class act.  He was selfless, witty, brilliant, kind and a gentleman.  I will miss laughing for hours with him over drinks and dinner, his thought-leadership and his friendship.  However, I will also continue to remember a great lesson from a great man that sometimes “just-in-time” preparation is the best way to live your life.”

So Browning, we’ll miss you my friend, but none of us will ever forget you.

gayle at second line

And, as promised, here’s what I wrote right after Browning died

When the great Irish poet Yeats died, W.H. Auden wrote a commemorative poem with the refrain “… the day he died was a cold dark day.”  When I heard of Browning’s death, it was 96 and humid in New Orleans but my mind immediately went to a cold dark place. Bil Kellerman said losing him was like losing a brother and it was. But I felt, and continue to feel, more like Shoeless Joe Jackson in the Field of Dreams when he told Ray Kinsella that “Getting thrown out of baseball was like having part of me amputated.”

I feel like that. Like some vital part of me is gone.

Because Browning was more than just a colleague to me. He was my friend.  For nearly 25 years.

We met in San Diego at the wonderful  tech conference that Stuart Hubbard (now with Epiq) used to put on every 4th of July at the Hotel Del Coronado. It was a wonderful show …… I met Neil Aresty there and Michael Arkfeld and Anne Kemp.  I had just moved to San Diego to help a firm install Summation (the DOS version) and ended up staying to help them convert a Wang network to Novell. Browning was at Gray Carey fending off complaints from his fellow partners that he had been seen by associates typing on his personal computer.

But technology wasn’t what led to our friendship.  In fact we were an unlikely pair. He was, as Craig Ball noted, a patrician Yankee from New England. I was a working class Irish guy from south Boston. He was a WASP. I was Catholic. He liked to quote Shakespeare, I dropped lines from The Boss. He was a Republican (yikes) …  I was a die-hard Democrat.

But two things led to our friendship. We were both world class smart asses, way too smart for our own good.  We were witty and pretty and …… well you know. Despite his mostly well-spoken demeanor, he would often erupt in a blaze of vulgarity worthy of Bull Halsey and refer to these outbursts as the appearance of his evil twin brother Skippy. As in, “I was listening to him speak thinking what a stupid SOB he was when, lord love a duck, up popped Skippy and let him have it with both barrels.”

These outburst were legendary with vendors who crossed his path or more importantly made life difficult for his staff and a dictionary of his most popular  phrases was actually used by several law firms as their way of checking emails for inappropriate content.  He was singularly proud of that.

But our true bonding occurred when he learned that I was a fan of Bob and Ray.  Actually I think he liked me the minute he realized I KNEW about Bob and Ray. The Two and Only …  New England comic legends. Think Bob Newhart but even more sardonic and more laid back.  And two of him. We would talk incessantly about characters like Wally Ballou, an inept news reporter “and winner of 16 diction awards” or sportscaster Biff Burns (“This is Biff Burns saying this is Biff Burns saying goodnight”) . He particularly liked their commercial sets such as  “Gerstmeyer’s Puppy Kibbles, the dog food guaranteed to turn any pet into a vicious man-killer”.

His favorite was the interview with the President and Recording Secretary of the Slow Talkers of America. He played a recording of that piece on his laptop in the lobby of a hotel one evening and we were both literally doubled over, laughing, gasping for breath, tears running down our faces and squealing like two little girls. A staff member came over and asked us to “please quiet down or retire to your room”. We looked at each other and erupted in another uncontrolled fit of hilarity. We weren’t staying at that hotel!

But he wasn’t all wise cracks and belly laughs. I’d  be remiss if I didn’t mention several other qualities which Browning pretty much kept to himself. He was from New England, where good fences make good neighbors. He was a man of great faith but he didn’t wear his faith on his sleeve or beat you over the head with it. It was his faith not yours.  I’m not a bible thumper myself  but in thinking of him I think of Acts 11:24, “He was a good man, full of the Holy Spirit and faith…”.

He loved his family but wasn’t one to show pictures or talk of family vacations. Thank God.  Yet whenever he mentioned his wife, even in passing, a look came into his eyes and a tone came into his voice that anyone who has been in love with another person for a long, long time would recognize immediately.

And he had a sense of old school manners and social propriety that were very New England.  He loved the fact that I would open car doors for Gayle or stand when a woman came to the dinner table.  He once became so incensed at a fellow panelist of mine at a Masters Conference session ( and I am beating back my own personal Skippy to not name names here) who kept referring to our moderator, Judge John Facciola, as “John” that he stood up, glared at the person and walked out of the room. When I asked him later if he had spoken to the person, he said “No I was going to give him a piece of my mind but I couldn’t spare one and I didn’t think he’d know what to do with it.”

So as I’m writing this Gayle walked by and mentioned, “oh, this is just the time of day Browning would call you”.  On his morning commute into San Diego (which as Chris Dale noted was often only a brief stop on his travel itinerary) he would call friends because we were, as he put it, “smarter than most of the talk radio I can get here”.  We would talk about everything from how long it took the British navy to disperse citrus fruits throughout their entire fleet to cure scurvy (42 years) to whatever happened to wearing hats that didn’t have a sports logo.  We talked about the sea and our wives and our friends and Ted Williams and, as the great Walter Mosely had Easy Rollins say at the end of the novel Devil In A Blue Dress,  “we talked and laughed a long, long time…”

So I’m tempted to say something like “good night sweet prince” but he’d hate me sucking up to him like that. And he’d say so.  No he wouldn’t want us making a big fuss about his life or his death. As Marc Lauritsen tweeted this morning  “He’d exhort those of us still living to cherish each other.”    As we say in New Orleans, “Yeah you right Marc.”

Last year when Ross Kodner died, I walked around ILTA telling my friends I cherished their friendship and wanted to be sure they knew that BEFORE they died. So go do that. Tell all your friends how much they mean to you. Today. While you can .

I regret so much that I didn’t get to speak to him one last time.  Bruce said it in a song,  “I wished I would have known. I wished I could have called you. Just to say goodbye”.

But like Browning, Yeats wanted no fuss over his life or death.  The Irishman had these words written on his headstone in a remote cemetery on a country road in Ireland where people pass by every day, words from one of his last poems that I think Browning would endorse:

“Cast a cold eye

On life, on death.

Horseman, pass by.”


Oh, and write if you get work Browning.




August 13, 2018


Bob Ambrogi channeled his inner Yogi Berra last week in a column entitled “déjà vu All Over Again“.  In it, he recounts how a week before the ILTACON18 Conference, that organization announced that CEO Dan Liutikas was resigning effective Aug. 31 and will not attend the conference.  Two years ago at this same time, longtime ILTA Executive Director Randi Mayes announced her retirement. She was replaced by Dan, who last year at this time, announced that he was replacing Peggy Wechsler who, as Director of Programs and Strategic Relationships was the primary organizer and well known and widely admired public face of, the annual conference.

Dan’s tenure had been rocky, beginning with his stormy relationship with Peggy and the ill-advised, IMO, timing of letting her go a week before the opening of the conference she had spent all year planning. Especially since she had previously said, albeit informally, she was considering retirement at the end of 2017. That type of handling of a long time and valued employee set the tone for his tenure.

The reaction of a good portion of the membership was best captured in an open letter sent by Rick Hellers President & CEO of nQueue and a founding member of ILTA. Hellers eventually left ILTA to launch of a new organization named the Association of Legal Technologists (ALT) but before that his letter to the ILTA Board made several points:

  • Will ILTA remain peer-to-peer or continue to move towards a hierarchical approach?
  • Will the organization focus more on its members or on its revenue?
  • Will it emphasize education or will it continue to scratch the backs of the largest law firms?
  • Will ILTA’s leadership once again walk the walk and refocus on its Statement of Purpose and Core Values?

He concluded by saying, “ILTA’s trend toward commercialism has been obvious. Educational sessions at ILTACON used to be mostly about solving specific problems and led by those who have done so. Now they are often panels led by unprepared “big names” from big firms who simply pontificate.”

“Simply put, we are concerned that ILTA has lost its way.”

I had been around ILTA since the late 80’s when it was still VSLUG, a WANG VS system users group.  I was living in San Diego and had met Browning Marean, who asked me to go to meetings with him. It was everything a user group should be: fun, educational and focused on solving users problems.  They incorporated the group around 1985 as I recall and by 1992 many users had expanded well beyond WANG systems, leading to a name change to LawNet.  Several years later they became ILTA.

That original user group was a support group for VS users but it evolved into a strong peer to peer network. Even today the organization’s statement of purpose: “ILTA provides the premier environment for peer connections, education and collective intelligence to leverage the strategic advantages of technology in the legal profession.” But as Dan stated that purpose seems to have been lost.

Beyond internal organizational uncertainty, here’s another good example of lack of clear institutional focus: the curious ILTA attitude towards bloggers.  This year a number of prominent bloggers who had been long time supporters of the group and its conference were surprised to find that their application for a press pass to attend and report on the show were denied.

Two stood out to me. First was Craig Ball, who called ILTACON the “best conference ever”. In 2013 !  Second was Chris Dale, who was allowed a pass for himself but not his longtime videographer, who we all know better as his son Charlie.  That combined with the fact the “press corps” were not given rooms in the Gaylord made the prospect of lugging video equipment in and out of the hotel every day part of what Chris described to me as ” …. an indicator of a changed climate, and the last straw.”  He (and Charlie) will not be there.

Why the cold shoulder for these long time supporters of ILTACON?  Well it seems to now qualify for a press pass (which includes bloggers) you must    ” … work for a publication, news service, broadcast outlet or news site that is regularly issued and published primarily for the dissemination of news, and operates independently from any commercial, political, government or special interest. Only media whose primary responsibility is the coverage of the legal, legal technology, technology industry, workforce tech issues, and related news will be considered for credentials.”

So only a writer for an entity that primarily disseminates news, has no commercial interest and covers primarily legal can qualify?  Which means if I were, say, the technology columnist for a regularly published newspaper like the New Orleans Advocate or the Boston Globe, I wouldn’t qualify.  Not exclusively legal.

Which explains why ACEDS, a non-profit membership organization for eDiscovery certification testing doesn’t qualify (disclaimer: my wife is their blogger and she was turned down) But wait, a technology writer for the ABA Journal does qualify?  Both are non-profit membership organizations.

And non-commercial?  Chris and Craig don’t qualify but Kevin O’Keefe does? I could have sworn when Kevin says he provides “Strategy, professional design, platform, coaching, SEO, marketing and free ongoing support.”, he was describing a business. Now granted, Kevin has LexBlog, which IS a major legal news network. Of bloggers.

So maybe it’s just plain ole bloggers that ILTA doesn’t like.  But really, I thought the point of blogging was that blogs gave independent viewpoints and were NOT part of major news network.  I mean if you look at the ABA Top 100 Legal Blogs, only ATL, Law Sites and maybe 3 Geeks and A Law Blog (oops, no, I was just told they were turned down as well) and the SCOTUS blog, although the last isn’t really a news organization, would qualify. So two, maybe 3, of the ABA Blawg 100 Hall of Fame make the cut.

And in this year’s ABA top 50 blogs? I’d say BigLaw Business qualifies altho Bloomberg covers much more than just legal technology but OK let’s give them that one.  One.


I don’t think ILTA knows what a blog is and why they were started and just how many there are in our space. Or more importantly, how influential they are and how much good press they provide. You know. Like a member benefit. At no cost to them.  But using the ABA definition of “journalists” shows a fundamental lack of understanding of what a blog is. Not to mention following the lead of an organization that has seen their market share of lawyer members cut in half over the last several decades as current and prospective members complain of lack of meaningful content, overly expensive meetings and unwieldy technology.

Or maybe they do know and just don’t care. Maybe they don’t want to give out free passes and just want to make money on every admission fee possible. After all, they have 25,000 members. The problem is they only get about 1800 to attend. Less than 10% of their membership. Seems like they could use a Jenny Jones Social Media makeover from someone like Kevin O’Keefe instead of concentrating on what Rick Hellers called “… The overall trend towards commercialization…” while simultaneously alienating some of their greatest friends in the extensive legal social media space.

Like me. Because right now instead of going to ILTACON18 I’ll be going to a Maryland CRAB Fest. The Conference Really Against Bloggers.  Oh and here’s a news flash. Those publications and news outlets.  They’re dying on the vine and being replaced by, you guessed it, bloggers.

Remembering Ross Kodner

August 6, 2018

Ross Kodner RIP

Every year as the annual ILTA Conference comes around I think about friends I won’t get to see there anymore.  Jim Keane, Richard Robbins, Ross Kodner and of course Browning Marean.

I’ll say more about Browning and the others next week but today I want to say a few words about Ross.  It was late July of 2013 when he left us and he was only 52.  He crammed a lot of life into those 52 years but it was still way too early to leave.  And he had a lot more to say, of that you can be sure.

I loved his comments on technology.  Some were spot on, like the myth of the paperless office.  Some were outrageous, like calling the Outlook system Microsoft Lookout.  As Browning once observed of some one else, he was “often wrong, but never uncertain.” And we loved him for it.

Because he was so full of life and energy and enthusiasm and he really loved technology.  Plus he got us all those cool gifts from vendors every year at The Dinner.  And when we turned around and honored him at the end of one Dinner with The Minuteman Award, he laughed along with all of his at the joke.

That’s still one of my favorite memories of Ross.  Along with the picture from the St, Patrick’s Day in Chicago we made him an honorary Irishman. I’m not sure what the coat had to do with it … Gayle would know.

But one year at an ABA Annual conference,  he moderated a panel discussion on legal technology with 5 or 6 speakers.  And by Moderate I really mean Speak. Ross was using a portable microphone which he passed to panelists when he asked a question. Andy, Jim, Natalie … all the usual suspects and I was sitting at the far end next to Reid Trautz.   I told Reid when we started that I doubted I would ever SEE the mic, never mind hold it.

But halfway thru Ross got a little sore throat and to kill time he asked me a question and passed the mic down the line while he looked for a glass of water.  Naturally I did what any good speaker would do in that situation. I kept the mic.

Several minutes later Reid is passing me one of Ross’s business cards on which Ross had furiously scribbled ONE MINUTE!!!!!! I smiled, looked up and said “only one minute to go? OK, I’ll be brief’.”

I saved that card and I had it framed with a big picture of Ross, an American flag and an eagle worthy of Steven Colbert at his grandest.  Six  months later at an ABA TechShow, I presented it to Ross at the end of that years Dinner and had the crowd in tears as I recounted the story and several others of similar circumstance.  I ended by telling Ross that his wife wholeheartedly agreed with the award for reasons she would not specify.

Well he was a good sport about the whole thing. One of his great qualities was being able to take as good as good as he got.  Although I never did get asked back to speak on that panel. Hmmmm.

Miss ya buddy.



Craig Ball & Gayle O’Connor Talk About the Sedona Conference Primer on Social Media

July 18, 2018

That’s right. Fresh off her ACEDS blog post about the newly released Sedona Conference primer on social media, Gayle takes over the EDiscovery Channel hosting duties to talk with Craig Ball about that publication.

So read the blog. Watch the video. Then be sure to attend the Sedona Conference webinar on the primer hosted by Ken Withers, Deputy Executive Director of The Sedona Conference and featuring several members of the Working Group on Electronic Document Retention and Production who helped craft the primer.  These include Federal Magistrate Judge Kristen Mix of the District of Colorado,  Atty. Andrea D’Ambra, head of ED and IG at Norton Rose, Julie Lewis CEO and Founder of Digital Mountain and Phil Favro of Driven Inc.  The webinar is on Aug 8 and a registration link can be found here on the Sedona site.

And if, after all that, you still haven’t heard enough on the subject, you can find Gayle along with ACEDS Executive Director Mary Mack and Director of Strategic Partnerships Kaylee Walstad at ILTACON18 from Aug.19-23 in National Harbor, MD. (they say it’s in DC, but it’s not. It’s in Maryland. Across the river from Alexandria. Which has the closest METRO stop) . Stop by the ACEDS booth,  # 130, or better yet, sign up for their evening river cruise on Wednesday night! They’d love to talk with you about all the exciting things going on at ACEDS.

Craig Ball may be there, I can’t really say since he IS the EDiscovery International Man of Mystery and his schedule is a closely guarded secret. But I’ll be there, so feel free to track me down and we can chat.

Drew Ashby Talks About His Conference – eDiscovery for Trial Lawyers

July 5, 2018

Drew Ashby of The Cooper Firm in Marietta GA was a student of the Georgetown Ediscovery Training Academy who came away with more than a practical knowledge of how to work with ESI. He also came out of the class with a desire to pass that information along to other plaintiffs’ attorneys. As he put it, “I want to help show my fellow plaintiffs’ counsel that effective e-Discovery practice is within their grasp and that their cases are fertile ground for not only getting measurably better results but also for obtaining favorable court opinions that force their opposition to play fairly and by the rules.”

Listen as I speak with Drew about he accomplished that goal. Check it out on the original, authentic, accept no substitutes EDiscovery Channel at


June 27, 2018

Keyword search is back in the news again after the recent order in United States v. New Mexico State University (No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017) and with it, the predictable spate of articles and posts demeaning keyword search and using as their basis the reference to J. Facciola and his “where angels fear to tread” quote.

It’s like hurricanes returning every year to the Gulf of Mexico: we know they’re going to be strong, we just don’t know when they will appear or exactly how strong they will be. As that great legal analyst James W. Buffet once observed, “aint no reasonin with hurricane season.”

Or misplaced legal analysis.

So first off, I’d recommend you read Ralph Loseys article on this subject, Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use  at .  Ralph is, as always, erudite, well researched and exceedingly thorough. But as much as I respect him both personally and professionally I have to disagree with a part of his analysis.  I’ll set forth my disagreement below but first let’s take a look at that the “angels fear to tread quote” itself.

The original was written by Alexander Pope in his 1711 poem An Essay on Criticism and refers to inexperienced or rash people attempting things that more experienced people avoid.  At the time Pope wrote the phrase, the word fool meant an inexperienced person and not one with inferior intelligence.  Key point here.

The quote has been used many times, eg

  • Edmund Burke in his work Reflections on the Revolution in France in 1790.
  • Abraham Lincolns speech in the Lincoln Douglas debates at Peoria, Illinois on October 16, 1854
  • Fools Rush In (Where Angels Fear to Tread)”, a 1940 song written by Johnny Mercerand Rube Bloom, sung by Frank Sinatra
  • Bob Dylan’s song “Jokerman

Sometimes, however,  it has been misinterpreted, as in:

  • Wise men say, only fools rush in, from Elvis Presley’s “Can’t Help Falling in Love“, released in 1961.
  • “Angels rush in where fools fear to tread”, Cary Grant as the angel in the 1948 film The Bishop’s Wife.  (my personal favorite) 

And I believe the interpretation of J. Facciola’s words as a complete proscription against keyword search is one of those misinterpretations. (I’ve written on this many times and my 2016 blog post on the subject is appended at the end of this post) In the O’Keefe case, he was being asked to overturn search terms that had been used by a party after consulting with an expert.  The objecting party offered no expert of their own and simply asked the Court to set aside the existing terms and substitute his own.

The Judge, it seems to me, was hesitant to undertake that task.  To that specific point, he wrote that “[w]hether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”  (my emphasis added).

The Judge wasn’t saying keyword search was deficient per se. He was saying that substituting a list of words drawn up by a non-technical person (himself) would be necessarily inferior to a list done by technically adroit people. And that rather than ask him to create a new list, the objecting party should bring their own technical expert to the table.

And I think we can safely assume that J. Facciola understood completely the meaning of Popes phrase. Some of you may recall his keynote lunch address at the Eleventh Annual Georgetown Advanced eDiscovery Institute in Nov of 2014 where he carried on an imagined conversation on the state of litigation and advocacy. for an hour … with Socrates.  His understanding of the classics is clearly well established.

So this is where I disagree with Ralph.  In his columns, he states..

“Why did she make multiple detailed, technical decisions on legal search, including specific keywords to be used, without the benefit of expert testimony? Was that foolish as several judges have suggested, or was she just doing her job by making the decisions that the parties asked her to make?”

“Going it alone with legal search in a complex case is a fool’s errand.”

But the dictionary definition of a “fools errand” is “a task or activity that has no hope of success.”  And as noted above that is not what either Pope or J. Facciola meant to say.  Rather they meant that only an educated or trained person could succeed.

Two reports always under reported in this debate are instructive.  The first is the mostly ignored EDI/Oracle study which found that experienced SME (subject matter expert) attorneys out performed computer search engines. (see the article at  ) .The second is the test run by LawGeex which initially reported that their AI product “…. achieved an average 94% accuracy rate, whereas the “highly-experienced, US trained” human lawyers achieved just 85% accuracy on average.”  (see the article at )

But a close look at that report reveals that the two best-performing lawyers each achieved 95% accuracy across the five NDAs, which was 1% BETTER than the computer. In one specific document, the AI spotted 100% of issues, while the best lawyers found 97%.  Not much of a difference.

So although the computers were, of course, always faster than humans (humans took an average of 92 minutes to complete a review of the five proffered exemplar documents while the software took just 26 seconds) did the overall difference in average accuracy of only 9% justify the costs of a computer search?  Without pricing information, a factor always left out of discussions about computer searches, it’s impossible to say.

Where I totally agree with Ralph is where he states, in his penultimate paragraph,

I urge the judges and litigants faced with a situation like Judge Fashing had to deal with in New Mexico State University, to consider the three choices set out by Judge Francis in Greater New York Taxi Association:

  1. Cooperation with the other side and their technical consultants to attempt to agree on an appropriate set of search criteria.
  2. Motions supported by expert testimony and facts regarding the search.
  3. Appointment of a neutral consultant who will design a search strategy.


Indeed, bring in an expert. A human expert. Computers are a good tool but as Ralph notes in his conclusion, Comment 2 to the ABA Model Rules of Professional Conduct states that “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”




Published: April 4, 2016

Author: Tom O’Connor, Senior eDiscovery Consultant, Advanced Discovery

This week has seen several websites recirculating a article, first released in January just before LegalTech New York, entitled And the Judges Say: It’s Time to Adopt New Legal Technologies.  It’s an excellent piece that was an introduction to a great LegalTech session with Judges Andrew J. Peck (SDNY), James C. Francis (also S.D.N.Y.), Elizabeth D. Laporte (N.D. Cal.), and Pamela Meade Sargent (W.D. Va.), in which the judges discussed what they are currently seeing in their courts regarding big data, analytics, e-discovery and other technologies.

However, part of the article is a quote from an interview with Judge Peck in which he says, “I think there’s just too much data to try and do it the old fashioned way. That’s whether you’re talking really old fashioned with eyes-on-everything for review, or the still-old fashioned in my view use of keywords.”

With all due deference to Judge Peck, who I respect and admire both professionally and personally, I’ve disagreed with that position in the past and I still disagree with it.  Here is my reasoning.

Much of the lack of confidence in keyword searches is laid at the feet (or pen) of Judge John Facciola, in the case of United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), with his famous quote about going where angels dare to tread. But that’s not exactly what Judge Facciola opined in that case. He actually dismissed a defendant’s objection to the adequacy of keywords used by the prosecution and ruled that a party challenging the efficacy of an opposing party’s search terms must do so through expert testimony.

His hesitancy was about the Court itself undertaking the complexity of search in the identification and production of electronically stored information. To that specific point, he stated that “[w]hether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”

To be fair, in an earlier decision, Disability Rights Council of Greater Washington v. Washington Metro Transit Authority, 242 F.R.D. 139 (D.D.C. 2007), Judge Facciola did, in fact, state that concept searching is more likely to produce comprehensive results and is more efficient than keyword searches. However there, as in O’Keefe, he questioned the litigants’ ability to demonstrate to him that the results were defensible.

I’ve noted numerous times in the past six months that despite the strong scientific evidence in support of TAR, numerous polls from organizations such as eDJournal and Kroll, as well as client surveys from firms such as Gibson Dunn and Norton Rose, show that the majority of people are NOT using TAR. And if they are not, it seems clear they must be using keyword searches.

This position was supported publicly last year at the Today General Counsel conference in New York by Gene Eames, Pfizer Inc.’s director of Search and Analytics in their Legal Division. Gene made it clear that he is strongly in favor of keyword searches IF the keywords and the results can be tested and validated. His point was that you use keywords to propagate a seed set for the eventual computer search, so why not use it on all the documents as a first pass.

Several people noted that pointing any search tool at all the data may be costly and inefficient. Co-chair David Kessler of Norton Rose Fulbright stated, “If I’m playing hide-and-seek with my kids and it’s my turn to seek, I’m not looking in the breadbox. They won’t be there because they don’t fit there.”  That comment prompted Gene to recall a discussion he had with a federal judge about the best way to proceed in a search, where he said if he returned from a meeting at the courthouse to find he had lost his keys he wouldn’t begin a search in Penn Station; he’d start in the lobby of the courthouse.

Everyone in the conversation did agree that the best practice is to bring some common sense to your search process. Technology is great, but it’s not an “Easy Button”, and the best technology for your project depends on a number of variables, including budget, time constraints and search needs. As Maura put it, “TAR is a process, not a product.”

The point about keywords was brought home again several weeks ago at the ASU Arkfeld EDiscovery Conference in Tempe, when I spoke on a panel about keyword searches to an SRO crowd. As I said in my recap of that session, “…keyword search is far from dead and is probably still the most common search method used by eDiscovery staff. TAR may be up and coming, but keyword search is still king.”


E-Discovery for Trial Lawyers Conference

June 13, 2018

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Seriously, where else can you hear Ariana Tadler and Craig Ball speaking at the same conference?  This 2 day in-depth seminar is designed for trial lawyers, paralegals, and staff for plaintiffs firms who wish to learn more about electronic discovery and immediately implement tactics to use these requests to their advantage.

This is going to be a great conference and it’s not too late to register.  It’s being held at the offices of the State Bar of Georgia in downtown Atlanta and you can see full details with a registration link here: