Mastering Electronic Evidence and Discovery

Catching Rules Up With The Times

2010-05-17T09:08:00.003-04:00

Just think about it. Courts are struggling with applying the electronic discovery rules fairly based upon the old fashioned technology that existed -- say -- four years ago. Now we are facing a growing movement toward cloud computing, distributed processing, SaaS and Social Media; we are seeing explosive growth of devices like iPhones and iPads and other smart devices. How are the rule makers to keep up with this technological evolution!

There have been extensive discussions about revising the Federal Rules of Civil Procedure to ease the burdens on corporate parties and to bring a greater sense of economic balance to e-discovery. Unfortunately, the extensive body of court decisions which forms much of the backdrop for these discussions is founded upon "old fashioned" corporate technology models: network servers, traditional back-ups, desktop computing and the ever present corporate laptop.

What rulemakers must do is take a careful look at what is happening today in corporate technology, spend a little time with a crystal ball and forecast what might be happening tomorrow and then take a fresh look at the rules. Obviously, the FRCP cannot and should not be framed in terms of specific technology but there needs to be flexibility in the rules and their recognize that what may be a reasonable strategy for collection and preservation of date on traditional media may not be workable, let alone reasonable, for some of the more current forms of media and the applications running on them.

All in favor of returning to the old ways of paper discovery raise their hands!

Shockwaves from New Jersey

2010-04-03T11:08:00.003-04:00

The Supreme Court of New Jersey issued a decision on March 30, 2010, that is sending shock waves through the EDD community and corporate counsel, as well. The case is Stengart v. Loving Care Agency, Inc., an employment discrimination lawsuit.

The defendant Corporation had an explicit written policy declaring that all use of the company's computer systems subject to inspection and review and that employees had no expectation of privacy in their use of company computers. Notwithstanding that policy, Employee used the company's computers to access her Yahoo email account and to exchange privileged email communications with her attorneys. After litigation was commenced, counsel for Corporation conducted a forensic examination of Employee's computer and recovered a record of those privileged email messages on the hard drive. Relying on the company policy, the attorneys deemed the privilege waived and took no steps to return those email messages or notify opposing counsel of the existence until well after they were discovered. The court ordered a lower court review of possible sanctions on defense counsel for violation of a duty to refrain from examining the email.

The New Jersey court has in essence ruled that:

(1) The sanctity of the attorney client privilege trumps the employer's right to impose limits on the use of its own computer system and, despite an explicit written policy to the contrary, the employee is entitled to expect a right of privacy with respect to privileged email.

(2) Attorneys who conduct examination of computers used by employees do so at risk of sanctions if they find privileged communications and fail to take immediate steps to remove those communications from the review process and notify opposing counsel of same.

The first holding goes against a well established school of thought among corporate and computer lawyers that a company has the right to protect itself against improper use of company computers by employees by adopting a well drafted policy declaring the absence of an expectation of privacy. Countless corporations are probably calling counsel right now to review their written policies and practices which now have been called into question in New Jersey.

The court in this case was influenced by the fact that the emails were sent over the Yahoo system, and not over the company owned computer system. One has to wonder whether the result would have been different if the company policy explicitly forbid use of internet based email systems from company computers.

The second holding is a warning to all counsel to be wary in conducting reviews of employee computer records when there is any possibility of discovering material that should not be viewed.

Time will tell whether this New Jersey decision has implications elsewhere.

Seeking Proportionality in e-Discovery

2010-03-26T11:01:00.004-04:00

The Sedona Conference Working Group on Electronic Document Retention and Production is readying yet another of its work papers with a goal of bringing some measure of reason to the chaotic world of electronic discovery. This paper (not yet available to the general public) will focus on the need for "proportionality" in electronic discovery. It has long been a challenge to balance the burdens and costs of complex e-discovery requests against the potential benefits to the parties, the process and the court. Far too often the cost of complying with e-discovery requests has overshadowed the true amount in controversy.

The citation to the case is lost somewhere in the recesses of memory, but the "poster child" for the campaign for porportionality might just be the Indiana district court case in which a school district was ordered to comply when an e-discovery request that the parties agreed would cost more have $100,000 to satisfy. The maximum recovery by the plaintiff in that case? Less than $100,000!

One of the challenges faced by the parties and the courts is the difficulty of getting a handle on the cost of e-discovery before undertaking the search and recovery project. As the players gain more experience, better estimates will be coming along but still those estimates are imprecise at best, sometimes nothing more the W.A.G.'s. Vendors will undershoot the estimates hoping to win the business. Trial lawyers will act as advocates for their respective clients with the requesting lawyers claiming the data is vital and the cost estimate is inflated; producing lawyers will try to aim for the high side on the estimates, hoping to resist discovery.

One answer is for the courts to seek advice and counsel from experts with no axe to grind. Special Discovery Masters can be enlisted for the purpose of evaluating competing estimates as well as advising the court on potential middle ground resolutions of such discovery disputes.

Obviously not every case can or should carry the cost of a special master. However, when hundreds of thousands of dollars are at stake (even potentially millions in some even mid-range lawsuits), spending a few dollars in advance to find the right balance may just be the ticket to achieving proportionality in e-discovery.

Sanctions 101, a Must Read Article

2010-03-16T16:33:00.005-04:00

I had thought of entitling this post "Sanctions for Dummies" in the style of the popular and ever expanding "Dummies" series. (There is even "e-Discovery for Dummies" for those who are so inclined.) That title, however, would demean the scholarship in recent article by Douglas Pepe in the ABA Litigation Journal entitled "Persuading Courts to Impost Sanctions on Your Adversary." Pepe, a litigator with Gregory P. Joseph Law Offices in New York City, has written a thoughtful and easy to understand guide to the numerous avenues by which attorneys seek to sanction their opponents from Rule 11 to the Discovery Rules to the dreaded "inherent power" argument. Anyone considering seeking sanctions -- or defending against a sanctions motions -- should take a look.

What Pepe makes clear is the necessity of hanging your sanctions motion on the right peg. Too often sanctions motions are a murky blend of Rule 11 logic with the discovery sanction rules and frosted with the inherent power argument. When litigators fail to understand the key distinctions among the various sanction powers they may also fail to make the right arguments pro or con to ensure a just result. Particularly with e-discovery and spoliation issues at the forefront in today's litigation, there is a growing blurring of the lines between the various rules and powers.

Sadly, many courts have added to the confusion by something less than a clear analysis of the standards which they are applying in imposing discovery sanctions. Courts may rely on the inherent power argument but cite Rule 37 for the available sanctions. Occasionally they stray into Rule 1 or Rule 11 analyses.

The cause of justice would be well served if litigators adopt Mr. Pepe's advice (1) to chose the right rule for your sanctions motion and (2) seek only the appropriate sanctions designed to fit the wrong.

A breach of fresh air: Non-preservation Agreement

2010-03-16T13:19:00.006-04:00

After probably hundreds of thousands of man hours devoted to fighting over preservation agreements and orders or about the failure of a party to properly preserve evidence, a breath of fresh air has emerged. In the case of United States v. La. Generating LLC, 2010 U.S. Dist. LEXIS 20207, 2-3 (M.D. La. Mar. 5, 2010,the parties agreed to a non preservation stipulation. Recognizing that not every case deserves the steam-shovel approach to electronic evidence preservation, scooping up everything in sight, the parties listed an extensive array of ESI that need NOT be preserved. Included in the stipulation (which was approved by the court) were back-up tapes, voice mail messages, PDA data, cell phone logs, deleted files and an interesting array of other material.

In most cases, the parties are happy to lay a trap for the unwary opponent, hoping to find some evidence of spoliation through unpreserved ESI. Let's hope this case sets a precedent for more cooperation among counsel in the future and more realistic approaches to preservation of ESI only when it really needs to be preserved.

Is it Time to Rewrite the Rules?

2009-04-14T14:05:00.003-04:00

[Ed.'s Note: We're back after a brief hiatus for personal matters. Watch for regular posts again.]

There seems to be a growing hue and cry to re-write the discovery rules in FRCP. See for example Mary Mack's post at Discovery Resources reporting on the American College of Trial Lawyers' Recent report on the discovery "crisis." Among other complaints from the trial lawyers is a claim that the discovery rules have "clogged" the courts because of increased litigation. There may be many failings in the application of the e-discovery rules, but to this commentator clogging of the courts is not one of them. True there are many pitched battles over discovery issues, but that has always been the case; it is only the subject matter that is changing.

In our view the core issue today is just one: the inodinately high cost of complying with the well established standards for pretrial discovery when electronic evidence is involved (and that is almost always the case these days).

In the "old days" we had a discrete number of paper files in metal file cabinets that had to be searched for potentially relevant documents. We dispatched an army of young associates and paralegals at hourly rates well south of the century mark to spend a few days perusing those files and finding potentially relevant documents. After a second review by more senior lawyers, the documents we sent off to the copy center, packed in bankers boxes and shipped to opposing counsel. The costs were fairly predictable. Sure, a few relevant documents were likely to be overlooked but nobody thought seriously about sanctions for such omissions because that risk was just an acceptable part of the process.

Now, however, times have changed. Given the undisciplined nature of store of electronic data and the lack of strong controls over end-user behavior extant at most corporations, almost every lawsuit requires a search of substantial parts of the corporation's electronic universe of information. Searches are done using all too frequently inartfully drawn search term equations (the judges are telling us how bad we are at that process) and huge amounts of information are extracted for manual review to determine whether it is or is not relevant. Because there is no universal standard for form of production, the parties haggle over native vs. tiff vs. pdf; they haggle over whether to produce metadata and if so what fields to produce. They haggle over how the documents are to be organized, preserving parent child information, system identifiers and custodian information. The end result is a very expensive process, often producing results that are only marginally valuable.

Add to the problem the diverse set of software tools and vendor options available in the marketplace and you have a very expensive investment required to even play in the e-discovery space.

A rewrite of the rules will take years to implement. What is needed, instead, is a stronger push for standards such as EDRM and the Sedona Principles, and for taking those standards to a mcuh deeper level. What is needed is for the district judges and magistrates to start to embody a more uniform set of standards in the courts. What is needed is for the trial lawyers to recognize the importance of "getting it right" from the start of the case with good faith negotiations over sound and reasonable e-discovery protocols before embarking on discovery battles.

My 2 cents worth.

Cooperation Checklist from the Experts

2009-02-02T11:13:00.005-05:00

With all the talk about the importance of cooperation in the electronic discovery process, it is interesting to see a checklist of items which some experts believe come within the ambit of "cooperation". At a recent Fios webinar, the faculty (Richard Braman of Sedona; retired magistrate now law school dean John Carroll; and Fios consultants Kenneth Rashbaum and Mary Mack) offered several examples of cooperation (a list which is, of course, by no means all inclusive):

* Exchanging information with opposing counsel on relevant data sources, including those not being searched;
* Scheduling early disclosures on the topics of ESI
* Joint development of search and retrieval methodologies
* Early identification of (and agreement upon) forms of production
* Development of case-long discovery budgets based upon proportionality principles
* Using court appointed experts, mediators or formal ADR programs to resolve discovery disputes
* Using in-house or third party "experts" to assist the attorney in drafting discovery requests and preparing responses (presumably to make sure the requests and responses are properly targeted and technologically correct.

The Sedona Conference Cooperation Proclamation probably is now becoming required reading for litigators, given its widespread endorsement. However, checklists like the foregoing from the Fios presenters really advance the cause by putting some specifics on the process.

Establishing an E-Discovery Protocol

2009-01-27T21:17:00.003-05:00

I have long advocated the importance of successfully reaching agreement on an electronic discovery protocol early in the litigation process as a means of avoiding disputes down the road and minimizing risks of sanctions. A well crafted, comprehensive protocol can go a long way toward eliminating disputes over form of production, search terms, scope of search and even preservation obligations.

E. Kendrick Smith and Robin A. Schmahl, writing in the Fulton County Record, have provided a good checklist of considerations for protocol negotiations in their article "How to Get an E-Discovery Protocol Rolling" published earlier this month and reproduced at Law.com. Their concluding thought says it well:

Discovery protocols work best when the attorneys do their respective homework and cooperate with each other early in the discovery process. If done thoughtfully and in good faith, entering into such a protocol can drastically reduce costs and streamline discovery. It is a litigator's best tool for managing electronic discovery and avoiding discovery disputes.

To their comments I would add one additional thought: Lawyers must ensure that they fully understand the systems and technology they will be dealing with, both for e-discovery support and at the client's site. In other words, the lawyers must know what they are to be talking about in the protocol negotiations.

Cooperation a Matter of Lawyer Ethics?

2009-01-27T17:13:00.006-05:00

Michael Berman, associate editor of the ABA's Litigation News publication, argues that cooperation in e-discovery is an ethical obligation of lawyers. (His article, "Give Peace A Chance," appears in the Winter 2009 issue of Litigation News at p. 25.) Berman draws his context from the oft-chronicled decision in Mancia v. Mayflower Textile Services, U.S. Dist. LEXIS 83740 (D. Md. Oct. 15, 2008) and, in addition, from The Sedona Conference's Cooperation Proclamation.

This blogger has no argument with the thesis of Mr. Berman's article. While the ethical rules impose a duty on each of us attorneys to zealously guard the rights of our clients, there is a parallel duty to the process. Once there is recognition that cooperation is consistent with zealous representation, perhaps lawyers will be more willing to beat their swords into plowshares and together plow the fertile ground that awaits those who work together toward a common goal of justice.

Can There Be Cost Effective E-Discovery?

2009-01-27T10:11:00.003-05:00

A recent post by David West, a veep of CommVault argues that there are "Smart Shortcuts to More Cost-Effective eDiscovery." Basically, the suggestion of this vendor is that e-discovery be moved in-house, avoiding the sometimes extremely high costs of outsourcing to third party discovery vendors. Of course, the 800 pound gorilla in the room is the entry fee for being able to move e-discovery inside.

Clearly, a corporation which is willing to invest the time and money to build systems which permit it to anticipate demands for electronic discovery can find cost effective shortcuts to e-discovery. More importantly, they might even find it affordable to defend meritless cases in which massive e-discovery demands are levied upon them and thereby avoid the vacuous evaluative conclusion "it is cheaper to settle than to discover." It is a real question in the current economic climate whether many corporations will be able to afford the high startup costs of buying the tools and building the systems necessary for effective, defensible in-house e-discovery. However, it is an equally real question whether corporations can afford NOT to make the investment lest the house come tumbling down when the "bet the company" e-discovery case comes along.

It Pays to Know What You Are Doing

2009-01-25T07:31:00.004-05:00

There's a brief decision by Magistrate Karla Spaulding from the Middle District of Florida that will probably be overlooked by most of my e-discovery colleagues in the blogosphere and certainly won't have any lasting importance in the body of electronic discovery jurisprudence. It does, however, underscore the importance of knowing what you are talking about when making presentations to the court (or opposing counsel) on e-discovery matters.

In Bray & Gillespie Management LLC, et al. v. Lexington Insurance (2009 U.S. Dist. LEXIS 3824 (Jan. 9, 2009), the core issues before the court involved sanctions for failure to comply with a court order. However, in a short footnote at the end of her opinion, the magistrate clearly expressed her frustration over the fact that the lawyers for one of the parties didn't understand the capabilities of their litigation support software and accordingly the party had to spend a lot of money unnecessarily to create a hard drive. Reading between the lines, it would appear the lawyers did not fully understand the capabilities of their Introspect database.

The message, once again, is don't mess with e-discovery if you don't know what you are doing and/or don't have competent assistance at your side.

Ah, the Metadata Debate

2009-01-22T10:31:00.003-05:00

Shannon Kirk & Kathryn Hong, writing in Law Technology News for January 16, have focused their attention on the seemingly unanswerable question: When is production of metadata required in response to a Rule 34 Request ("Rule 34: A Cause for Confusion"). It is a bit too simplistic to say that there conclusion is that metadata ought to be produced only when it is requested but I suspect that is the view of the authors.

The problem is that there are differing interpretations of Rule 34's mandate in the manner in which they are usually kept. Does that mean organized as they are in the normal course? Does it mean produce paper if kept on paper? Does it mean produce in native? Of course the parties have the opportunity to specify in their Rule 34 request the format in which electronically stored information should be produced. However, that does not end the debate. Often a party will request native production with metadata just to make life more difficult and discovery more expensive for opposing parties. (Yes, I know that view is rather cynical, but I have seen it happen.)

The metadata issue is one which should be sorted out in the initial meet and confer. The parties need to take a realistic view of the value of metadata in the case at hand as contrasted with the cost (to both parties) of dealing with metadata. If the parties can't agree, a strong direction from the court should be required.

Seek and Ye Shall Find (Maybe)

2009-01-21T14:34:00.006-05:00

Kudos to George Paul and Tom Gilson for a thoughtful article on the pitfalls of search term strategies in electronic discovery, entitled "Seek and Ye Shall Find?" The article provides a useful checklist of precautions including negotiations with your adversary, documenting your decisions, testing your terms and exploring alternate technologies to validate your search.

Studies have demonstrated that no set of search terms is guaranteed to retrieve 100 percent of all relevant documents. Of course, it is equally true that a manual (eyes-on paper) search isn't failsafe either. The best protection against sanctions when the missing missive eventually surfaces lies in reaching agreement with opposing counsel. Until we lawyers get past the gunslinger mentality (shoot anything that moves), reaching agreement can be a daunting challenge. The best chance of reaching agreement with opposing counsel lies in a mediated meet and confer or results from strong oversight from the bench.

No Wonder There Are Problems with EDD

2009-01-21T08:08:00.003-05:00

From a just released Kahn Consulting survey done in conjunction with ARMA and other organizations:

"Less than one quarter of organizations surveyed believe that their employees understand their [governance, risk management and compliance], [records and information management] and E-Discovery responsibilities and how to fulfill them. Only 9% of employees have a good understanding of how GRC impacts them; only 15% understand their Legal Hold and E-Discovery responsibilities; and only 21% understand how information should be retained and disposed of. Although 67% of those surveyed state that employee training is “critical to their success,” the low confidence in employee awareness indicates that most organizations have more GRC, RIM, and E-Discovery training to do."

No wonder the courts have grown frustrated with the process of electronic discovery. As noted in prior posts, many courts have expressed concern over the competence of the lawyers supervising the e-discovery process. Now we learn from Kahn (no real surprise here, though), that most employees don't fully understand what they are supposed to be doing with their records either.

We have the makings of "a perfect storm" here.

More on Special Masters and E-Discovery

2009-01-17T10:45:00.005-05:00

Jonathan Redgrave has called my attention to an excellent article which he co-authored by Judge Shira Scheindlin focusing on the benefits that may be obtained by generous use of special masters in connection with e-discovery. The article, entitled "Special Masters and E-Discovery: The Intersection of Two Recent Revisions to the Federal Rules of Civil Procedure", appears at 30:2 Cardozo L. Rev. 347. The article includes sample orders appointing special masters.

The authors suggest that "[t]he appointment of a special master may make it possible to accomplish in days what would otherwise consume months of litigation and require both sides to incur substantial costs." They further point out that appointment of the right special master will actually save the parties money in the long run, notwithstanding the fees and expense of the special master.

Egads! Cost is No Object for Complete E-Discovery

2009-01-12T11:37:00.005-05:00

Thanks to Ralph Losey for pointing out a potential outrageous decision from the DC Circuit of the Court of Appeals, In Re Fannie Mae Securities Litigation, 2009 WL 21538 (CADC, Jan. 6, 2009) in which the Office of Federal Housing Enterprise Oversight -- a third party to the litigation -- was required to spend more than $6 million, an amount equal to nine percent of its annual budget, to respond to an electronic discovery request by affirming the district court's contempt citation. In part, it appears that the court's rationale was that OFHEO undertook the work without objection and thus was stuck with the consequences of its own decision. Neither the cost of the project nor the fact that OFHEO was a third party seemed of much importance to the court.

Early in the e-discovery era (a couple of years ago on the pages of this history book), I came across an employment discrimination case in which a municipality was ordered by a district court to spend $100,000 to comply with an e-discovery request. Ironically, the maxium amount in dispute in that lawsuit was $100,000.

These two examples collectively demonstrate a process out of control. Embedded in the Federal Rules amendments was a concept of proprotionality, a concept articulated in the "not-reasonably accessible" provisions of Rule 26. That concept seems lost on most courts, however. A failure to carryout thorough and expensive searches for electronic discovery or to implement "best practice" methods for retrieval and production could result in sanctions. It is like walking through a minefield without a map. You don't know which mistake you make is going to explode in your face; you only know for sure that the risk of making a mistake is substantial.

If e-discovery is not to destroy the system it is meant to serve, courts must be more sensitive to the need to balance cost against the value derived.

Special Masters in E-Discovery

2009-01-09T09:13:00.002-05:00

The article has been around for a while but it's worth a second read in light of the new emphasis on cooperation and competence in e-discovery. Corey Baron's "New Niche for Special Masters" describes the increasing use of special masters for facilitating the resolution of e-discovery disputes.

My own experience as a special master suggests that the best role a master can plan is that of mediator, helping the parties find their own resolution of their differences and disputes. Often, there are no right answers in e-discovery disputes; only differences of opinion as to which fork in the road to take. Produce in native? What meta data fields to include? What media to search? A skilled special master can smooth the bumps in the road for the parties and ultimately reduce both the expense and the time required for adequate ediscovery.

Debating the Top E-Discovery Cases of 2008

2009-01-07T11:51:00.005-05:00

One can certainly debate which are the most important e-discovery cases of the last year (as Ralph Losey does so eloquently on his blog, or as Kroll has done by listing its most important case list. However, there can be no debate that 2008 was an important year for e-discovery jurisprudence. The themes of the year can be summed up as "competence," "cooperation" and "concept searching". What will the new year bring? There are nearly as many prognostications about 2009 as there are bloggers. Mary Mack at Fios has listed her twenty predictions in her Sound Evidence blog. Sonya Sigler of Caphora shares her insights, as well. Other predictions abound throught the blogs.

My own prediction, modest though it may be, is that there will be increased emphasis on the initial meet and confer stage of the e-discovery process, with courts insisting that lawyers (who have the competence to know what they are doing) truly cooperate to reach agreement on the myriad issues that need to be discussed and agreed upon at that early stage. We might even see court intervention at this early stage, ordering the parties (who can't otherwise agree) to meet in the presence of a discovery master (or perhaps discovery mediator) to work their way through the issues.

Time will tell. It is an annual year-end ritual to see how the prognosticators fared during the year. Tune back in in 2010 to see what really happens during the year.

Update 1/9/09: Yet another review of the year just concluded is found at Law.Com setting forth yet another view on the top cases of the year. No surprise that Magistrates Grimm and Faciola seem to be at the top of everybody's lists.

Cooperation Enforcer: Discovery Master?

2009-01-06T10:56:00.003-05:00

As the judicial theme for 2009 E-Discovery opinions becomes clear (e.g., Judge Facciola's keynote at Legal Tech stressing cooperation and competence) another trend is likely to emerge: the early appointment of a discovery master for complex ediscovery cases. A recent opinion by Magistrate Waxse (Gipson v. Southwestern Bell, 2008 U.S. Dist. LEXIS 103822) may be foreshadowing things to come. After renewing his endorsement of the Sedona Conference's Cooperation Proclaimation, Judge Waxse admonished the parties to confer on the appointment of a special master to "obtain agreed resolutions of disputed matters."

I believe the use of special masters will see increasing frequency in the months ahead as the parties struggle to come to grips with the new emphasis on cooperation. Litigators are not used to cooperating with opposing counsel and will find it difficult to take off their advocates robes to sit down and find common ground to make discovery speedy, efficient and economical while serving the needs of the parties.

From my own experience as a special master and as an advocate in many e-discovery battles from the meet and confer stage through countless sanctions motions, I believe there is real benefit to expanding the use of a discovery master to ensure the parties have an effective initial meet and confer BEFORE they become locked into discovery battles over spoliation, form of production, completeness and all the other issues leading to sanctions.

Time will tell.

The Campaign for Cooperation

2009-01-06T08:10:00.002-05:00

Magistrate Faciolla is firing another shot in the campaign in instill the virtues of cooperation among e-discovery counsel. He will be the third day keynote speaker at LegalTech in New York in February. According to a news release " United States Magistrate Judge John M. Facciola will discuss the critical concepts of competence and cooperation in the electronic discovery (EDD) process. Judge Facciola will review the history of the new amendments to the Federal Rules of Civil Procedure, which were intended to expand cooperation among the parties but which, in the absence of competence, can yield precisely the opposite: a widening gulf between parties who understand EDD and those who do not."

Clearly judges are growing weary of e-discovery battles as evidenced by a number of recent opinions and by the number of judges who have signed on to the Sedona Conference Cooperation Proclamation.

Will the message sink in? Only time will tell.

Is the Problem Lawyer Incompetence?

2008-09-29T09:28:00.006-04:00

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.

One' Lawyers Reasonably Useable Form of Production is Another's.....

2008-09-29T09:23:00.001-04:00

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.

Playing "Gotcha" with ESI Rules

2008-09-26T14:08:00.004-04:00

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.

Ethical Outsourcing of EDD

2008-08-26T21:24:00.001-04:00

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.

EDD Survival Guide for Corporate Counsel

2008-08-25T11:08:00.000-04:00

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

2008-08-25T10:29:00.003-04:00

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.

Mastering EDD

2008-08-25T10:14:00.001-04:00

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.