Ralph Losey has published a thoughtful commentary on the role of lawyer competence (or the lack thereof) in contributing to many of the problems identified in the countless court decisions chastizing one party or another (or their counsel) for electronic discovery lapses. His post, entitled Lawyers Behaving Badly, is worth a read.
There is no question that many, many lawyers are grossly under-equipped to interact with corporate clients maintaining large and sophisticated IT systems and that they must rely upon (1) the clients to give the right answers when asked about relevant documents and systems and (2) their instincts to never trust the first answer they are given. Although the situation is improving, most corporations have not structured their IT systems for litigation; rather they set them up in a way that makes sense for doing business. This fact just increases the challenges counsel face in meeting the exceedingly high standards of performance set by the courts.
Countless seminars teach lawyers about the law of e-discovery but few teach the technology of e-discovery. That is where the shortfall exists.
Monday, September 29, 2008
One' Lawyers Reasonably Useable Form of Production is Another's.....
Three recent district court decisions serve to emphasize the murkiness in Rule 34's admonitions regarding the form of production of electronically stored information in response to opposing counsel's request. The language of the rule is clear, of course. "Documents" must be produced as they are kept in the "usual course of business" or "in a reasonably useable form". Clear enough? Apparently not.
In White v. The Graceland College Center for Professional Development & Lifelong Learning, Inc., 2008 U.S. Dist. LEXIS 71865, Magistrate Waxse opinioned that defendant’s production of e-mails and attachments as print outs of PDF files was neither the form in which they were maintained (electronic) nor reasonably usable form. Accordingly, he ordered the defendant to reproduce the e-mails and attachments in native electronic form. Magistrate Snyder, in Goodbys Creek LLC v. Arch Insurance Company,2008 WL 427963 found that production of documents in TIFF format – an electronic alternative to paper in widespread use among e-discovery aficionados – was not reasonably usable and ordered defendant either to supply the documents in native form, in “another comparably searchable form” or to supply plaintiff with software for searching the TIFF images. Finally, in Perfect Barrier LLC v. Woodsmart Solutions, 2008 U.S. Dist. LEXIS 71863, Magistrate Nuechterlein was confronted with a request by plaintiff to have the defendant replace electronic copies of e-mail messages produced in their native electronic form with static, bates-numbered images (presumably TIFF files); the court ruled that the electronic production was adequate and that defendant need not reproduce the files.
What is reasonably usable format to one viewer may not be reasonably usable to another, depending on the tools that party has available (and perhaps even the sophistication of the viewing counsel. Judge Waxse put his finger on the problem in the Graceland case, however, when he wrote: “[T]his discovery dispute is an example of one which … could have been avoided had the parties adequately conferred at their … Rule 26(f) conference regarding production of electronically stored information.”
Be forewarned, counsel. There is no substitute for a thoroughly negotiated agreement on e-discovery protocols and procedures BEFORE the cart runs away without the horse.
In White v. The Graceland College Center for Professional Development & Lifelong Learning, Inc., 2008 U.S. Dist. LEXIS 71865, Magistrate Waxse opinioned that defendant’s production of e-mails and attachments as print outs of PDF files was neither the form in which they were maintained (electronic) nor reasonably usable form. Accordingly, he ordered the defendant to reproduce the e-mails and attachments in native electronic form. Magistrate Snyder, in Goodbys Creek LLC v. Arch Insurance Company,2008 WL 427963 found that production of documents in TIFF format – an electronic alternative to paper in widespread use among e-discovery aficionados – was not reasonably usable and ordered defendant either to supply the documents in native form, in “another comparably searchable form” or to supply plaintiff with software for searching the TIFF images. Finally, in Perfect Barrier LLC v. Woodsmart Solutions, 2008 U.S. Dist. LEXIS 71863, Magistrate Nuechterlein was confronted with a request by plaintiff to have the defendant replace electronic copies of e-mail messages produced in their native electronic form with static, bates-numbered images (presumably TIFF files); the court ruled that the electronic production was adequate and that defendant need not reproduce the files.
What is reasonably usable format to one viewer may not be reasonably usable to another, depending on the tools that party has available (and perhaps even the sophistication of the viewing counsel. Judge Waxse put his finger on the problem in the Graceland case, however, when he wrote: “[T]his discovery dispute is an example of one which … could have been avoided had the parties adequately conferred at their … Rule 26(f) conference regarding production of electronically stored information.”
Be forewarned, counsel. There is no substitute for a thoroughly negotiated agreement on e-discovery protocols and procedures BEFORE the cart runs away without the horse.
Friday, September 26, 2008
Playing "Gotcha" with ESI Rules
Wes Billingsley, writing in The Texas Lawyer" (and reproduced at Law.Com) put his finger squarely on the problem that both parties and lawyers are encountering under the FRCP e-discovery amendments. He wrote:
"Any rule changes can fall short of fixing every problem. This is the case for the FRCP amendments, as they relate to unwarranted spoliation claims of electronic documents. Ironically, the FRCP amendments were meant to clarify the rules and help parties avoid issues of spoliation; instead the new rules have placed electronic documents under a microscope, further escalating a trend of satellite litigation involving spoliation claims. "
Indeed, the discovery battle has become almost entirely about spoliation and preservation issues. Many case strategies appear to be structured in an effort to allow one lawyer to play "gotcha" with the opposing counsel and party. Many court decisions seem to be playing right into the hands of the gotcha lawyers by imposing strict, sometimes unrealistic standards on parties and punishing even slight transgressions. In the paper world -- when civility reigned -- there was a great deal of reluctance to dole out sanctions. Now, almost weekly a new reported decision comes forth with such punishment.
Where will it end? When courts and lawyers recognize that, notwithstanding todays tools, technology and lawyer training, production of ESI will not be perfect and mistakes will occur.
"Any rule changes can fall short of fixing every problem. This is the case for the FRCP amendments, as they relate to unwarranted spoliation claims of electronic documents. Ironically, the FRCP amendments were meant to clarify the rules and help parties avoid issues of spoliation; instead the new rules have placed electronic documents under a microscope, further escalating a trend of satellite litigation involving spoliation claims. "
Indeed, the discovery battle has become almost entirely about spoliation and preservation issues. Many case strategies appear to be structured in an effort to allow one lawyer to play "gotcha" with the opposing counsel and party. Many court decisions seem to be playing right into the hands of the gotcha lawyers by imposing strict, sometimes unrealistic standards on parties and punishing even slight transgressions. In the paper world -- when civility reigned -- there was a great deal of reluctance to dole out sanctions. Now, almost weekly a new reported decision comes forth with such punishment.
Where will it end? When courts and lawyers recognize that, notwithstanding todays tools, technology and lawyer training, production of ESI will not be perfect and mistakes will occur.
Tuesday, August 26, 2008
Ethical Outsourcing of EDD
Outsourcing is the rule, not the exception with EDD. We hire electronic data discovery vendors to collect and cull our data; we hire vendors to host our data; we outsource the coding and review functions to third party shops (sometimes in India) to speed the process; and we hire contract lawyers to sit in house and assist us with the review. The American Bar Association Committee on Ethics and Professional Responsibility has just issued a new opinion, outlining lawyers responsibilities in outsourcing. Formal Opinion 98-451, available from www.abanet.org. While not breaking new ground with this opinion, the ABA emphasizes the ethical responsiblities that lawyers and law firms have to supervise the third parties highed to perform these functions. Those duties range from protecting confidentiality of client information (Rule 1.6) to supervision of professionals and non-professionals performing the work ( Rules 5.1 and 5.3).
The bottom line is that lawyers have a duty to make reasonable efforts to ensure that the conduct of the lawyers and non-lawyers to whom tasks are assigned is compatible with the applicable ethical obligations of lawyers.
Because these outsourced service providers are so important to the process, this opinion underscores the importance of carefully choosing the third party providers, thoroughly evaluating what is to be outsourced and continually monitoring the work of the third parties. Therein lies one of the great challenges of finding the balance which is the objective of this blog, namely the balance between effective and effecient electronic discovery and full disclosure of relevant evidence in the litigation.
The bottom line is that lawyers have a duty to make reasonable efforts to ensure that the conduct of the lawyers and non-lawyers to whom tasks are assigned is compatible with the applicable ethical obligations of lawyers.
Because these outsourced service providers are so important to the process, this opinion underscores the importance of carefully choosing the third party providers, thoroughly evaluating what is to be outsourced and continually monitoring the work of the third parties. Therein lies one of the great challenges of finding the balance which is the objective of this blog, namely the balance between effective and effecient electronic discovery and full disclosure of relevant evidence in the litigation.
Monday, August 25, 2008
EDD Survival Guide for Corporate Counsel
Though written as the new EDD rules were just taking effect, "E-Discovery Survival Guide for Corporate Counsel" c0-written with my colleague, Jeanine Bermel, still has timely lessons for avoiding some of the traps Tom Allman writes about (see prior post). The full article can be found by clicking here.
An EDD Dilemma
Tom Allman, senior stateman of the EDD world, writing in Daily Report Online, observed that
"Recent decisions in Qualcomm v. Broadcom—sanctioning party and counsel for discovery misconduct and referring counsel to state bar and remanding for further proceedings—have thrown into bold relief the complicated issues of electronic data discovery compliance." Indeed, this is just one manifestation of the growing crisis -- yes, crisis -- in discovery and case management in federal courts. Court are imposing broad and sometimes unrealistic burdens on house counsel and outside counsel, seemingly often requiring that every "haystack" be searched to find the discoverable "needles".
In the paper world, it was sufficient to identify the custodians who might have relevant documents, locate their file cabinets, and conduct a reasonable search to find potential evidence. In the electronic world, those file cabinets are often immense, filled with hundreds of thousands of documents. Short of eyeballing each document, can it be safely said that "all" relevant documents have been found?
Greater balance is necessary if we are going to prevent the system from collapsing under its own weight.
"Recent decisions in Qualcomm v. Broadcom—sanctioning party and counsel for discovery misconduct and referring counsel to state bar and remanding for further proceedings—have thrown into bold relief the complicated issues of electronic data discovery compliance." Indeed, this is just one manifestation of the growing crisis -- yes, crisis -- in discovery and case management in federal courts. Court are imposing broad and sometimes unrealistic burdens on house counsel and outside counsel, seemingly often requiring that every "haystack" be searched to find the discoverable "needles".
In the paper world, it was sufficient to identify the custodians who might have relevant documents, locate their file cabinets, and conduct a reasonable search to find potential evidence. In the electronic world, those file cabinets are often immense, filled with hundreds of thousands of documents. Short of eyeballing each document, can it be safely said that "all" relevant documents have been found?
Greater balance is necessary if we are going to prevent the system from collapsing under its own weight.
Mastering EDD
The plain reality that litigants are facing today is that the process of retrieving, searching for, reviewing and producing responsive ESI is akin to embarking on an unmapped journey through the Okefenokee Swamp: an uncertain path, unknown hazards and an unreliable itinerary, with only a vague idea where the journey’s final destination may be. There is no turning back the clock to the days before the 2006 amendments to the FRCP emphasizing the importance of electronic discovery. However, borrowing the words of the esteemed philosopher Pogo, in regard to electronic discovery, “We have met the enemy and he is us.” Until we, the participants in the process, figure out how to complete that journey in a way that comports with the goal of Rule 1, FRCP, balancing the need for full disclosure in discovery with the “just, speedy, and inexpensive determination of every action,” the electronic discovery process will continue to be inordinately expensive and time-consuming and will unduly delay the just determination of many actions brought in the federal courts.
The goal of this blog is to identify resources and methodologies which might speed that journey and, as well, to discovery the roadblocks and quicksand that impedes successfully reaching the destination.
The goal of this blog is to identify resources and methodologies which might speed that journey and, as well, to discovery the roadblocks and quicksand that impedes successfully reaching the destination.
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