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.
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