Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2011-04-07 12:29:53Format, images and links may no longer function correctly. Last week, an unfortunate incident occurred in our industry: A blog post containing inaccurate information rocketed through the internet, creating its own misinformation and unrest.  A blog post from Dominic Jaar of KPMG Canada implied that Judge Shira Scheindlin was calling for the US Immigration and Customs Enforcement (ICE) Agency to discontinue its use of a major eDiscovery industry application.  The incident is unfortunate because the facts were not correctly reported initially and because the ever increasing use of re-quoted blogs, tweets and other social media resulted in widespread repetition of the error.  Many of our readers have asked for our perspective on what happened, so we did some investigating with the principals and have our own opinions on the incident.

Our first order of business was to contact Dominic Jaar at KPMG to ask why the blog posting was published in the first place.  I spoke with Dominic, but he would not comment for this story.  Actions speak louder than words, however, so it should be noted that Dominic quickly retracted his blog post and apologized to the vendor in question.  What I infer from that is that Dominic realized his error and was taking steps to correct it.  The original blog post no longer exists (except with those folks that took screenshots of it), but I had a chance to read it.  The most problematic element of the post itself was the title (“Judge Scheindlin:…’abandon the …. application and discontinue its use’”) because it implies that the quote belongs to Judge Scheindlin.  In reality, the quote belongs to Catrina Pavlik-Keenan, who is the Director of the Freedom of Information Act Office at United States Immigration and Customs Enforcement Service.  The quote is from a declaration (which can be found here) that Pavlik-Keenan provided as part the NATIONAL DAY LABORER ORGANIZING NETWORK, et al., v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., case. (NOTE:  We contacted Clearwell Systems for comment, but they declined comment because the case is active, ongoing litigation).

For those not familiar with such a document, a declaration as used in litigation is the written opinion of someone with assumed knowledge about the issue at hand.  In this case, Pavlik-Keenan was making the declaration in support of ICE’s motion for a stay pending appeal.  The stay requested in this case was to forego ICE’s production of records in response to a request under the Freedom of Information Act (FOIA).  Pavlik-Keenan was of the opinion that ICE shouldn’t have to fulfill the request due to various technical and financial considerations.

Whenever a commentator reports on such a situation, one item to consider may be the motives of the parties involved. This consideration helps to provide context within which to evaluate all statements.  The blog post (aside from misquoting) failed to consider this problematic element.  Pavlik-Keenan may well be an expert on ICE’s ability to respond to the request, but she clearly – as an agency employee – has an incentive (if not a requirement) to declare that they can’t fulfill the request.  In the interest of fairness, Jaar should have pointed this out.  He also should have pointed out that a declaration is not a statement of fact.

By reporting the information the way he did, Jaar gave the information more credence than it was due.  This can happen in a number of ways if you don’t carefully screen your information.  As an example, consider the scene in the movie “A Few Good Men,” where Demi Moore’s character strenuously objects to a medical expert witness and then Kevin Pollak’s character gets mad at her because her mishandling of the information resulted in the judge saying that the witness is an expert.  It will be someone’s job in the Day Laborer case to question Pavlik-Keenan’s expertise on the information in her declaration.  The readers of the blog post should have been reminded of that.

What exacerbated this situation is how quickly the misinformation spread across cyberspace.  The blog post was tweeted and then re-tweeted to the point where we had multiple emails from clients and readers within hours of the post.  Too many people simply glommed onto the “quote” from Judge Scheindlin without looking further.  Competitors of the platform in question were only too happy to publicize the blog post – after all, it came from a respected, supposedly impartial company, even if it was just an individual at the company publishing the post and despite the fact that company competes in the discovery space as well.

The incident also highlighted something that happens all too often – technology providers are thrown under the bus when a company or government department needs an excuse as to why they can’t meet a court request.   Without being on the inside, there’s no way to know if the issue here really is whether the platform or the processes (or lack thereof) within the target defendant are really to blame – or even if this is a strategic move by the person making the statement.  For the sake of argument, let’s assume that Pavlik-Keenan honestly feels that technology is holding her back. In all my years as analyst, I would say that less than half of the organizations that I’ve seen deploy technology have done so in the most optimized manner possible.  For technology to work, however, it must be applied correctly.  But, for anyone to report the quotes on the technology’s alleged failure (as in the blog post) without also asking the questions about what other issues might have existed is a case of poor and inaccurate reporting.

What may have been missing in this unfortunate event is the element of critical analysis.  Too often as writers, we want to be the first person to publicize a salacious headline.  Speed (getting the scoop, so to speak) helps us blog writers get readers just as quickly as it does for the tabloids.  But then just like the tabloids, it’s then easy to forget to ask the questions that will provide context and verify facts.  In this case, a lot of context was missing and thus misinformation spread like wildfire.

We are all responsible for being constructively skeptical of what we hear and read.  My first reaction upon reading the headline was to question whether a judge would ever actually be so bold as to state that someone should discontinue the use of a specific application.  As it turns out, that was a good question to ask because that led to the discovery that the quote was not from the judge at all. Thankfully, the blog poster in question has retracted the statement and apologized.  Hopefully, all parties can move on.

Some lessons learned from this incident are:

  1. Always take the time to analyze and question what you hear and read.  The temptation to be fast at passing along information will always exist, but it’s better to be slow and logical than fast and wrong.  In this age where blog posts and tweets live forever, it’s important to get it as right as you possibly can.
  2. Context is crucially important.  When reading any declaration, it’s important to think about motives and incentives and think a bit about what a declaration actually is.
  3. Technology does not exist in a vacuum.  Blaming technology alone for problems ignores the fact that process, policy, and usage scenarios also play a role.  As our colleague Kevin Esposito likes to say, “it has widely been reported that success has many fathers, but failure is an orphan.” When you hear someone blaming technology for their failings, look to see what their motivation might be – or if they’re writing their resume.



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