Facebook’s regulatory filing for its initial public stock offering included a letter to potential investors by 27 year old billionaire Mark Zuckerberg. The letter describes the culture and approach to management that he follows as CEO of Facebook. Most high-tech companies today follow this same management credo. Zuckerberg calls it the Hacker Way. Mark did not invent this culture. In a way, it invented him. It molded him and made him and Facebook what they are today.
The Hacker Way of thinking, often called the hacker ethic, has been around since at least the sixties. It has little or nothing to do with illegal computer intrusions, or what has come to be known as illegal hacking. Of course, we do not condone that. The Hacker Way is instead an experimental, can-do approach to innovation. It developed in the hobby of model railroad building as part of the first MIT computer labs. This work ethic has influenced many in the tech world, including Steve Jobs and Steve’s hacker friend, Steve Wozniak.
Zuckerberg’s letter to potential investors summarizes the Hacker Way into five key components:
- Focus on Impact
- Move Fast
- Be Bold
- Be Open
- Build Social Value
Zuckerberg goes on to explain that to attain these five goals a high-tech company must adopt iterative processes for continuous improvements and must promote a hands-on, meritocratic culture where an idea is adopted if it works, no matter who suggested it. This is the core meaning of Facebook’s motto – Code wins arguments.
These same principles apply to the management of any high-tech enterprise, including the management of complex electronic discovery projects. For example, it is critical that discovery projects focus on finding the key evidence first, the low-hanging fruit. Go for the maximum impact. Look for the highly relevant documents that will make a difference in the case. The merely relevant documents should be seen as a conduit to finding the five to nine hot documents you will want to use at trial or mediation to prove your case. That is focusing on impact. All too often lawyers get bogged down in details, they miss the forest for the trees. That results in unnecessary expense and burden on clients and must be avoided.
The need to move fast in e-discovery is obvious, especially in the area of preservation. Not every case may have e-discovery productions and review, but they all the duty to preserve electronically stored information. The preservation notices and ESI collections must be effectuated as soon as possible to be effective. Only this kind of fast action will protect a client and put them in a position of strength to avoid spoliation sanctions motions and act aggressively on their own discovery demands.
Discovery lawyers, like all other lawyers, must also be bold. No client wants a timid lawyer. Of course the boldness in discovery requests, and discovery responses, must always be tempered by reason, but mastery of the new laws in this field will empower a lawyer to take aggressive positions for their clients. The newly emerging doctrine of proportionality provides a good example of this. Disproportionate discovery demands should never be acquiesced to. No case should ever be settled because of the potential costs of e-discovery.
Openness can be a difficult value to implement in the law, as lawyers are bound by a strong ethical duty to preserve all client confidences. But you can keep all privileged communications secret and still be open with opposing counsel as to your discovery processes. You can and must make full disclosure of all relevant documents fairly requested. Hide-the-ball discovery tactics are unethical under legal ethics as well as Hacker Way credo.
You cannot over-state the importance of building social value to the law. We are a profession dedicated to justice. In the area of discovery we are dedicated to finding the true facts of what happened. We seek to have cases decided on the evidence, on the merits, and not just settled out to avoid discovery costs. We seek the documents needed to keep witness testimony honest, to avoid unfair settlements or trial results based on unsupported allegations and half-truths.
The Hacker Way provides good guidance to high-tech companies and high-tech lawyers alike. Give it a try. You may find that this code wins arguments in court too.