Why Online Education Will Surpass Traditional Face-to-Face Education in the Next 5-10 Years

February 7, 2010

Most online education today is poorly designed and implemented. It merely places a boring classroom lecture into an online video, changing a synchronous three-dimensional realtime experience into an asynchronous two-dimensional one. It does so without creativity and without harnessing the full power of online technologies. It does not begin to fully use the hyper-linked, multi-media, interactive, community sharing elements of the world-wide web. Still, even in these early primitive forms, current research shows that online education is already more effective than traditional face-to-face instruction!

Although today’s students get this already, many in the academic community find it hard to believe. That is one reason the U.S. Department of Education published a report recently based on a survey of 1,000 studies of online learning conducted between 1996 and 2008. See: Evaluation of Evidence-Based Practices in Online Learning: A Meta-Analysis and Review of Online Learning Studies. The consensus of research shows that online instruction is better than traditional bricks and mortar instruction for today’s plugged-in students. Also See the NY Times article Study Finds That Online Education Beats the Classroom.

It is time for teachers and administrators to wake up and accept this fact of life. That includes our Universities, our law schools, our programs for continuing professional education, and our educational publishers. Those who change and go with the times will prosper, those who do not will go the way of the newspapers. For law schools that means their income and rankings will decline, their enrollment will suffer, and their faculty will transfer. They will struggle to make ends meet, and ultimately, many will close. The few who lead the way, or quickly catch up, will make up the difference as world-wide matriculation increases. They will grow in quality, prestige, and wealth. I predict a large shakeup from the current, already dubious rankings.

The Key is Liberation from the Restraints of Time and Place

I will examine the details of current research into online education later, but first, here is my personal view of why traditional classroom instruction will soon fade in preeminence, at least at the University and professional continuing education levels. Online instruction has one inherent advantage over traditional bricks and mortar. This advantage is present in even the most rudimentary (primitive) forms of online instruction prevalent today, the video of a teacher on a webpage. Online education is asynchronous, meaning it is free of the traditional classroom learning restrictions of time and space.

A student can receive instruction when and where they want. The virtual online class can be viewed anywhere in the world that has Internet connectivity, which today means pretty much everywhere. It does not require travel or residence in any particular place. It does not require attendance at a particular time. Online studies take place at a time of convenience to the student. The bad dreams common to those of us trained in the bricks and mortar world — of not being able to find the classroom or get there on time – are a thing of the past. (I suppose in the future the nightmares will consist of not being able to find your computers or lost connectivity.)

This liberation from the constraints of place and schedule give online instruction a huge advantage over traditional instruction. It allows a community of teachers and students to converge together from all over the world to study a subject of common interest. There will still be some time constraints, but they will be in broader time frames, of entire days, weeks, or even months and years. A student can choose the best time to study. A teacher the best time to teach. Yes. The liberation of time and space applies to both students and teachers.

This freedom from the four walls of a classroom meeting at a particular time gives online learning its principal advantage. This fact alone radically transforms teaching and learning as we know it. It makes education accessible to everyone. It also makes it possible to drastically reduce the costs of education. And, potentially at least, as new more creative online instruction programs are developed, this new education will not just be slightly better than time-space restricted classroom education (a position it has already achieved), it  will be far more effective, especially for advanced University level instruction and beyond.

A student can logon to study at the time when they are most alert and receptive. They can do so in an environment of their choosing, one that they have found to be most conducive for learning. They may choose to study alone, or in a group.  Some may learn best in a crowded coffee-shop. Others may prefer a quiet room by themselves. For some the preferred time to learn may be in the morning. For others it may be late at night. Online learning can happen anywhere and anytime.

The liberation from the constraints of time and place has, to date, primarily impacted students. But its potential for impact on faculty is just as profound. Today most online instruction consists of a video of one professor teaching a class, plus perhaps some written materials. The video may include questions and interactions with a live class, or may simply consist of a lecture. Either way, it follows the traditional bricks and mortar model of one instructor per class teaching at a set schedule.

The faculty too should teach when and where they are at their best, and in the subject for which they are best qualified. No one professor on campus is the best qualified subject matter expert in the world (or even in the University for which they are employed) on all topics that they teach. They may be an expert in their general field, but as an expert, they will readily acknowledge that there are at least a few others better qualified than they to teach on some specific sub-areas in that field. Also, sometimes the best subject matter expert is not the best teacher of that subject, no matter how broad or focused the area. The experts and best teachers in any field are always scattered throughout the world. They are never all conveniently located on one University campus. Online education removes that spatial obstacle.

As online instruction matures, the best and the brightest instructors will converge online to teach a course together. A new role of moderator instructor will then develop, one who introduces and weaves together the teaching of specialists to present a unified whole for that course. The people with the most knowledge in the world on a subject, and the best skills at explaining it, at transmitting it, will be the teachers of that subject. This may ultimately reduce the number of teachers on any given subject, but should dramatically improve quality. Further, this reduction in the number of teachers needed for a subject is likely to be balanced by an increase in the number of subjects taught.

The top-level teachers can be filmed in bricks and mortar classes interacting with students, or in a studio, or in their home, or in front of a large audience, whatever fits their personality, whatever environment captures their best teaching moments. The best video-takes, where everything really gels and the magic of teaching happens, will be the videos that are preserved and shared in future online instruction of that subject. The video presentations that will be part of an ideal online program will be the videos of the best teachers in the world at their best moments. (I emphasize that these videos will be only a part of the program because there is far more to online education than viewing another speak and gesture. That is mere distance learning, the precursor to modern online instruction). These teaching moments will be preserved for posterity. This again is a game-changer for education and heralds a paradigm shift in quality of instruction.

Transformation to Online Education

This transformation will happen in steps. It will begin by a University or other learning institution capturing its best instructors on a particular subject and weaving their good presentations together into an online course. They may supplement the course by video input from other subject matter experts who serve as guest-lecturers. The variety of input and styles this entails will require, as mentioned, a new type of moderator instructor. They will provide continuity and also serve as mentors for students, to interact with them in a group or individualized basis. Others may specialize in the mentor role, and still others in the testing and certification roles. The personal touch in education will continue, so too will community, but it will change forms.

Such online community building and interactivity will be key, just as it is in current bricks and mortar instruction, but it will use many different media. It could include realtime video and teleconferences, and instant messages, or convenient-time emails, messages, twitters, wikis, and forums. Face-to-face meetings may still occur on occasion. The teachers who respond to questions may also include a much wider universe of subject matter experts, who would agree to be on call for certain universities on various subjects on which they possessed special expertise. Students can also easily interact with each other in online communities built and supported by their school. This interaction, like the instruction itself, will take many forms, including multi-media formats with audio-visual enhancements to videos. It will constantly change and evolve as new technologies emerge.

The instruction will include many short videos, not just a few long-winded talks. Research has shown that students tune out after 15 to 30 minutes. The videos will be interspersed with extensive and fully hyper-linked writings, drawings, diagrams, and other images and animations. Videos of instructors will also be enhanced with graphics and animations, as I have already done with a few videos on this blog. See eg. EDRM – The Unofficial Video Version. Instruction will be designed to impact both the left and right brains. Each course will also include a variety of creative task oriented challenges and interactivity opportunities. It will include periodic testing, both computerized and person-administered and graded. There will be structure and order in the curriculum, but this will be balanced by student empowering selection and arrangement choices. Online instruction in the future will be more like a challenging video game and less like a public television show. As I have often said before: Creativity is the best friend of learning and boredom is the enemy.

Research on Online Education

Current scientific research supports these postulations. First of all, research shows that online education is already better than traditional classroom instruction. Evaluation of Evidence-Based Practices in Online Learning: A Meta-Analysis and Review of Online Learning Studies (hereinafter “Department of Education Report” or “Report”). The Report at page ix of the Abstract states that:

… on average, students in online learning conditions performed better than those receiving face-to-face instruction.

The Report stresses repeatedly that online instruction tests “significantly positive for undergraduate and other older learners, but not for K–12 students.” The advantages, if any, for the K-12 age group are still somewhat speculative, in large part due to the absence of significant research for that age group. By contrast, there have been many tests and research concerning the university level and beyond, including significant testing in the area of medicine. Report pgs. xiii, xvii. Unfortunately, but not too surprisingly, only a few were noted in the area of law. This is not surprising because there has, until recently, been virtually no online training offered in law. This is, however, now changing rapidly, as seen for instance by NYU’s new offering of an online Masters of Law program in Taxation. This new online program by New York University School of Law is, I submit, of great importance, and should serve as a wake-up call to all in the academic community.

Some of the key findings of the Report include the following quotes:

Students who took all or part of their class online performed better, on average, than those taking the same course through traditional face-to-face instruction. Id. at xiv

The effectiveness of online learning approaches appears quite broad across different content and learner types. Id. at xv.

Blended and purely online learning conditions implemented within a single study generally result in similar student learning outcomes. Id. at xvi. [Note: some of the studies suggested to the contrary that the inclusion of some face-to-face instruction did improve learning. For that reason I believe that some real-time interaction remains important, be it in person, by video, telephone, IM, or the like.]

Elements such as video or online quizzes do not appear to influence the amount that students learn in online classes. Id. [Note: in my opinion this finding in one or more studies is the result of overly-long and otherwise poor quality videos and quizzes.]

Online learning can be enhanced by giving learners control of their interactions with media and prompting learner reflection. Studies indicate that manipulations that trigger learner activity or learner reflection and self-monitoring of understanding are effective when students pursue online learning as individuals. Id.

Providing guidance for learning for groups of students appears less successful than does using such mechanisms with individual learners. When groups of students are learning together online, support mechanisms such as guiding questions generally influence the way students interact, but not the amount they learn. Id.

The Report also includes a caveat about the conclusions and limitations of these studies. This cautions against immediate abandonment of traditional face-to-face instruction for the seemingly superior and obviously much cheaper online instruction modes:

However, several caveats are in order: Despite what appears to be strong support for online learning applications, the studies in this meta-analysis do not demonstrate that online learning is superior as a medium. In many of the studies showing an advantage for online learning, the online and classroom conditions differed in terms of time spent, curriculum and pedagogy. It was the combination of elements in the treatment conditions (which was likely to have included additional learning time and materials as well as additional opportunities for collaboration) that produced the observed learning advantages. At the same time, one should note that online learning is much more conducive to the expansion of learning time than is face-to-face instruction. Id. at vxii.

There are other legitimate criticisms and caveats that you can make concerning the Department of Education Report. See for instance Clive on Learning. But the major thrust of the report is incontrovertible. Online asynchronous learning has many distinct advantages over traditional synchronous classroom learning and is more effective for many students at advanced University and post-graduate levels.

The following quotations provide a good flavor for the contents of the sixty-six page Report. They also suggest ways, which I consider especially important, to improve online education programs by student powered creative interactivity and community based functions:

  • One common conjecture is that learning a complex body of knowledge effectively requires a community of learners (Bransford, Brown and Cocking 1999; Riel and Polin 2004; Schwen and Hara 2004; Vrasidas and Glass 2004) and that online technologies can be used to expand and support such communities. Another conjecture is that asynchronous discourse is inherently self-reflective and therefore more conducive to deep learning than is synchronous discourse (Harlen and Doubler 2004; Hiltz and Goldman 2005; Jaffee et al. 2006).  Id. at pg. 2.
  • In deciding how to implement online learning, it is important to understand the practices that research suggests will increase effectiveness (e.g., community building among participants, use of an online facilitator, blending work and training). Id.
  • Typically, in expository instruction, the technology delivers the content. In active learning, the technology allows students to control digital artifacts to explore information or address problems. In interactive learning, technology mediates human interaction either synchronously or asynchronously; learning emerges through interactions with other students and the technology. Id. at Pg. 4.
  • Scoville and Buskirk (2007) examined whether the use of traditional or virtual microscopy would affect learning outcomes in a medical histology course. Students were assigned to one of four sections: (a) a control section where learning and testing took place face-to-face, (b) a blended condition where learning took place virtually and the practical examination took place face-to-face, (c) a second blended condition where learning took place face-to-face and testing took place virtually, and (d) a fully online condition. Scoville and Buskirk found no significant differences in unit test scores by learning groups. Id. at pg. 39.
  • A study by Zhang et al. (2006) suggests that the way in which a medium is used is more important than merely having access to it. Zhang et al. found that the effect of video on learning hinged on the learner’s ability to control the video (“interactive video”). The authors used four conditions: traditional face-to-face and three online environments—interactive video, noninteractive video, and nonvideo. Students were randomly assigned to one of the four groups. Students in the interactive video group performed significantly better than the other three groups. There was no statistical difference between the online group that had noninteractive video and the online group that had no video. Id. at pg. 40.
  • Zhang (2005) reports on two studies comparing expository learning with active learning, both of which found statistically positive results in favor of active learning. Zhang manipulated the functionality of a Web course to create two conditions. For the control group, video and other instruction received over the Web had to be viewed in a specified order, videos had to be viewed in their entirety (e.g., a student could not fast forward) and rewinding was not allowed. The treatment group could randomly access materials, watching videos in any sequence, rewinding them and fast forwarding through their content. Zhang found a statistically significant positive effect in favor of learner control over Web functionality (see also the Zhang et al. 2006 study described above). Gao and Lehman (2003) found that students who were required to complete a “generative activity” in addition to viewing a static Web page performed better on a test about copyright law than did students who viewed only the static Web page. Id. at pg. 41.
  • Grant and Courtoreille (2007) studied the use of post-unit quizzes presented either as (a) fixed items that provided feedback only about whether or not the student’s response was correct or (b) post-unit quizzes that gave the student the opportunity for additional practice on item types that had been answered incorrectly. The response-sensitive version of the tutorial was found to be more effective than the fixed-item version, resulting in greater changes between pre- and posttest scores. Id. at pg. 44.
  • These studies found that a tool or feature prompting students to reflect on their learning was effective in improving outcomes. Id.
  • Zhao et al. also found that instructor involvement was a strong mediating variable. Distance learning outcomes were less positive when instructor involvement was low (as in “canned” applications), with effects becoming more positive, up to a point, as instructor involvement increased. Id. at pg. 53.

Conclusion

I am not arguing for the dismantlement of our brick and mortar Universities, including our law schools. Nor am I suggesting that our current system of CLEs be discontinued entirely, a system where people travel all over the country, if not the world, for just a few minutes of face-to-face presentations. What I am saying is that the current bricks and mortar only systems cannot and should not continue. More than that, they will not continue. The forces of history, competition, and technological advances will compel change, whether we like it or not.

This is a good thing. Online education is already better than face-to-face education, even though it is, I contend, still in its infancy and just beginning to realize its full potential. Moreover, online education is far more energy efficient and far less expensive. It is also far more capable of widespread distribution. Although we should not abandon or quickly replace our traditional modes of education, we should immediately begin to supplement these traditional modes with innovative online methods.

I predict that in the next five to ten years online education will surpass traditional education in popularity in all major fields of education, including legal. But surpass does not mean replace. Just as some people will still read paper newspapers in the future, myself included, some will still continue to attend and teach in face-to-face schools. Our universities are better funded and established than our newspapers. For that reason, they are better positioned to perpetrate the traditional pre-technological forms while adding to and embracing new online methods.

I call upon all schools to embrace this coming change, including law schools and the ABA which accredits them. The law should take notice and follow the lead of NYU. Law schools should start planning today to add online J.D. instruction and Masters of Law degree programs to supplement their in-person classroom instruction and degrees. CLE programs must do the same. If anything, the need for change is strongest in the area of continuing education, especially in my field of electronic discovery. Our scarce educational resources should be invested in technologies, including video and multimedia production facilities, not in more brick and mortar classrooms and jet fuel. We should be able to turn on our computers to meet the best and the brightest in the field, not travel to New York, Washington, or London. The way of the future is green and efficient. It is online.



Part 2 of My Talk with Karl Schieneman on Cooperation, Speaking French, Who’s On First, Zen and the Art of e-Discovery Specialization and Malcolm Gladwell

January 31, 2010

This is a continuation of my interview on ESI Bytes by Karl Schieneman. The first part of the interview discussed the upcoming première of my video with Jason Baron at Legal Tech on February 3rd, and e-discovery specialization. It is found just below this blog, and if you have not already read it, you should start there. This second half of the interview continues the discussion of specialization and branches off into a host of other vaguely related topics.

SCHIENEMAN: Let’s talk a little bit about the e‑discovery process.  It becomes clear you’ve got to have some knowledge right in the beginning to make this thing work. Because current thinking says having a good meet and confer and cooperating with the other side at the beginning is really critical to reducing e‑discovery issues, or at least dealing with them. How do you ensure this happens without e‑discovery expertise on your team? Do you have any thoughts on that?

LOSEY: Well, it’s like, you know, mandating a rule that people speak French to each other at the beginning of a case. If they don’t already speak French, it’s just not happening. It’s barely happening that they’re having 26(f) conferences at all, but to have a rule that says that during the conference, you will discuss French literature in French. You have to bring in a person that speaks French to do that, a specialist. Most clients are unwilling to pay for that, most lawyers are unwilling to take the time to learn French. They’re fine with English, thank you very much. And so as a consequence, the statistics show that even in the federal system, it’s about 30% only of the 26(f) conferences that  electronic discovery is even mentioned. And even then, it might be mentioned and they may say “Let’s not do any e‑discovery, at least not at first. Let’s try to do the case without it, if we can.”

SCHIENEMAN: Yeah, so I mean, just the understanding that if you’ve got these issues, you’ve got to cooperate, which is foreign to most litigators. I mean, it’s not a traditional tool used by many litigators who are adversarial often times.

LOSEY: Well, I’m more optimistic about cooperation. I would disagree a little bit with your statement on that. If lawyers are confident and comfortable in their knowledge, they can cooperate. They know that is needed, and that the alternative is going to potentially endanger their case and be detrimental to their client. Most lawyers understand that whether the deposition is at 3:00 or 4:00, for instance, doesn’t really make any difference and they will cooperate. You know, what goes around, comes around. They will cooperate on simple technical matters. Any lawyer during a trial is not going to object to a leading question at the beginning of asking questions of a witness. This is where you always ask leading questions just to make the witness more comfortable, like isn’t it true you live in Florida, things like that. Technically you could object, but if you did, you know what? The judge would look at you like you were a complete idiot because it is common protocol and an acceptable professionalism to not make such objections, but to cooperate. And why is that? It’s to move things along. It’s to facilitate the process. And that’s in your client’s best interest. And lawyers do cooperate on small matters that they understand.

So, I’m going to the defense of lawyers and cooperation. It is ingrained in every trial lawyer, every litigation lawyer, to have a certain bit of cooperation. On the other hand, it’s also ingrained to fight for your client’s rights and not to give up on things where you may potentially have an advantage. The problem lies in that a lot of trial lawyers, perhaps most, are not trained enough in e‑discovery to know what is a merely technical matter that doesn’t matter if you stipulate to, and what is a critical thing that you need to fight for. Since they don’t know where the line is and since they’re afraid of these ambiguous gray lines, they’re afraid of accidentally prejudicing their own client by cooperation. It’s not the fear of cooperation, it’s the fear of screwing up and prejudicing their client that I think drives it. And so the solution is knowledge. Once for instance they get it, that metadata is nothing to be afraid of, and that you should stipulate to that, and it’s not damaging your clients, then you’re going to get rid of a good third of the sanction cases you have going on right now. In these cases lawyers don’t cooperate because they don’t know enough to stipulate.  They don’t know enough to know what really is in their client’s best interest, which is to focus on the real disputes, not on the minor little technical matters.

SCHIENEMAN: One of the other things that makes this area challenging to work in is the role of new technology and new tools. You know, litigators I think oftentimes like bright line rules and dislike ambiguous changing areas because we’re paid to give the right advice. And that certainly makes it harder. But the landscape in e‑discovery always seems to be changing. One example, I did a recent show on backup tapes, and for a number of years after the Coleman case, Morgan Stanley case, everyone always thought, oh, my god, you have to avoid backup tapes, you know, draw the line there. But the technology is changing rapidly in this area, prices have come down and sometimes it might make the most sense to look at your backup tapes in an old case. And so it’s hard, you know, with technology changes, keeping your playbook current is one of the other issues that I see out there.

LOSEY: Well, it is. It’s a problem. But you know trial lawyers are really good at learning stuff because – the generalists anyway. That’s what they do. Each case they learn some new business, they learn some new subject matter, they learn a new area of the law. Most really good trial lawyers are also good at learning. So I’m optimistic that they can learn it if they’re inclined to do so and if they’re given a chance to learn it, a way to learn it. And that’s why I spend so much time writing and stuff is to give them that chance. Because I’m convinced once they learn it, they’ll get beyond the knee-jerk reaction of I don’t know, so I’m going to fight over everything. Then they will cooperate, and cooperation is to me one of the legs on the three-legged chair that e‑discovery needs to stand on.

SCHIENEMAN: Most lawyers are generalists, okay. In fact, the vast, vast majority of them are. What role do you see them playing to be effective in electronic discovery?

LOSEY: I see them playing a role, first of all, of getting beyond the fear of saying they don’t know.  A lawyer needs to be willing to admit and say I don’t know and then to ask questions when an IT person speaks a language they don’t understand – starts speaking French at them – and say wait a minute, I don’t know. That’s the first step. It’s like the Zen student has to have an empty glass there for the information to come in. Once that happens, real learning can begin.

Any IT consultant will tell you that a lot of people just nod and say yes, and they, the consultants, know perfectly well that they don’t understand what they’re saying. A good consultant will come in and will spell it out in proper language and won’t allow a person just to nod and say yes when they know they don’t get it.

The trial lawyers have got to get an attitude where they accept that discovery is something that they have to learn again. Now I understand where they’re coming from. After all, they learned discovery in their first year of practice. Most trial lawyers think of discovery as pretty simple, as something you give a young associate to do. How hard are interrogatories? Hey, after the first 100 depositions, they’re all pretty easy. You can do a deposition. You know, request for admissions. They’re simple. Request for productions. Oh, yeah, I’ve done that a million times. Well, what they don’t know is that last thing, request for production, suddenly – and I mean just over the last 10 years or so – has become a nightmare of complexity. It is not something you can just give to the associates or just gloss over. It’s something that you’re either going to have to take the time to really learn it, or you’re going to have to bring in somebody else that does, a specialist, and learn how to work with that specialist.

General trial counsel need to learn how to be a kind of a client. I work with a lot of trial lawyers that don’t really want to know e‑discovery. That’s fine. All they know is that they know how to get me on the phone. They know how to be the client and I am then serving the trial counsel, they’re my client. We both serve another client, if you will, but that’s the role of the specialist, to work with and support the general trial counsel. It’s a brand new role, never happened before. There were never discovery specialists before in the 30 years I’ve been practicing law. This is all new stuff to have that. So it’s a matter of feeling out what the roles are, how you do that, what are the rules of the game. A lot of times part of my thing is learning when to step back because I was a trial lawyer for a long time. But I don’t step on turf any more. I just worry about the e‑discovery and then if litigation strategy comes up, and people ask me, well then I’ll give them the benefit of my experience in that as well. And honestly that does make you more effective as an e‑discovery specialist, if you’ve had a life in general litigation. You can see the big picture that the IT-only guys will never understand. They have never done trial work. They’re never really going to be able to give the same kind of practical, common sense, good advice, that somebody who’s been in the courtroom can give you.

SCHIENEMAN: Well, let’s talk about the people that – of the generalists that aren’t learning and are ignoring the issue maybe. And there have been many statistics given about the opt-out issue in electronic discovery. We both have seen that 30% number of cases where the 26(f) doesn’t even deal with e‑discovery. I did a podcast with George Socha where he had some statistics, and I think he might have cited where that study was in that podcast – but I also anecdotally hear that same concern from judges who are sometimes shocked – and I remember talking to prominent judge here in Western Pennsylvania who basically asked the parties, are you really sure you’re not addressing e‑discovery at this point? And so from your perspective, what are the biggest risks you see from not addressing e‑discovery up front in effectively running a case?

LOSEY: The worst time to discuss e‑discovery is at the end of the case. That’s why the rules are written the way they are. They’re written to try to force federal practitioners to address it at the beginning of a case, rather than at the end. That’s why it’s on the list of topics in 26(f), that’s why in my opinion courts ought to start having mandatory 16(b) hearings, which most federal courts do not, you know, because it’s a lot of work and I don’t blame them. They’re dockets are too busy. But you know what? If the judges would do that, would always schedule a 16(b) hearing to discuss your 26(f) conference and your report, your case management report, then the judge could specifically ask them: What about e‑discovery? Where is that? What have you talked about on that? That’s what it’s going to take to force lawyers to do what they don’t want to do, most lawyers, and that is discuss e‑discovery. They don’t want to do it because, like I said, they don’t know how to speak French and they don’t really want to, they haven’t had a good course offered to them where they can learn it. And also there aren’t enough e‑discovery specialists out there for them to turn to. There’s only really a few of us that do it full time. When that happens, when the judges use their power and hold the lawyers feet to the fire with a 16(b) hearing, and put the questions to them, that’s going to force lawyers to go ahead and do it up front like the rules require.

The alternative is they will opt out. And that’s what they’re doing, continue to do, have always done, and are continuing to do. And you know what? If it’s done with informed consent of the clients, there’s nothing wrong with that. If it’s done with informed consent of the clients, you know, you can decide not to do any discovery at all, right? There’s nothing that requires you to do it. Usually, one side or the other’s going to want to actually do some discovery, though. And if they want to do discovery that includes the writings, then they have entered the world of e‑discovery. My thing is informed consent with the client where you talk to them about it. The reason the clients are agreeing with opt out, if they’re being asked, is because of the dollars. They’re being told, well, if we do e‑discovery, it will cost a million dollars and this case is only worth two million dollars. So the client says, well, you can’t quote exactly what the client says because there’d be certain profanities in that. But the bottom line is, the client’s reaction is no, let’s do the best we can without it.

The solution to that is we’ve got to make e‑discovery affordable, which is, you know, a whole other conversation. But the bottom line as to how you make e‑discovery affordable is the same answer you have to most e‑discovery questions, and that is, you educate the practitioners involved so that they know what they’re doing, so that can do e‑discovery in an affordable way. The affordability factor is e‑discovery 2.0 if you will, the second paradigm of e‑discovery that I’ve been working on for years and other people have too. And that is how to do bottom line based discovery instead of the original way e‑discovery was being done, and frankly is still being done by some experts, where you just collect everything and throw it all up on a review platform and review it all and damned with the cost. So it all comes back to education in my stilted view of the informed consumer, which is also what generalists are. They’ve become a consumer, not only of the services of specialist attorneys, but also of vendors. If they’re an informed consumer, they are going to end up doing it cheaper than if they’re an uninformed consumer with a blank check.

SCHIENEMAN: There are a number of judicial opinions out there. U.S. v. O’Keefe, Judge Facciola’s opinion where he talked about the complexity of search and topics beyond the ken of laymen. Then you’ve got the more recent case in 2009, the In Magid et al v. B.L. Development Corp. from Mississippi where the judge, Magistrate Judge Allen Alexander, imposed an electronic discovery expert on defendants. So I guess what we’ve been saying, is there is a strong recognition that sometimes you have to look to experts. Sometimes the judge will tell you to look to experts. How do you think you find experts? I mean what’s your advice for finding these specialists for generalists?

LOSEY: Well, that’s a good question.

SCHIENEMAN: There are only two of us on the podcast, so –

LOSEY: Yes. It’s not easy because it’s not like there is a list of people with LLM’s in electronic discovery. It’s also not as if there aren’t a lot of incredible claims being made out there by a lot of vendors. I mean, I just had a vendor call the other day that was funny. They cold-call lawyers – they just do a website search to find out what firms have an e‑discovery department or something on the website. And then they’ll get the names, usually one or two chairs of the department, and then they’ll cold-call them. I’m not going to name names here, but this person had no idea who I was, I was just another lawyer on a list. And he started with his spiel. Now, I imagine that half the time they get interrupted and they never finish that first spiel. But I’m just one of these curious people. I like to see what the vendors are saying. And this one, by the way, was not just some small local vendor. This was a big national vendor. What was their pitch? My, god, it was shocking. The gross exaggerations, the wild claims that are being made, and you know, to me it’s just shocking. We’ve got a wild west out there.

EDRM is working on a code of ethics for vendors and some day they’ll get there. I saw that the latest Sedona webinar coming up on ethics is going to include a discussion about vendors crossing the line and doing the unauthorized practice of law. That’s a huge issue of all non‑law firm consultants, where they have lawyers on staff, but they allegedly don’t give legal advice. This is very hard if you’re working for a vendor and you’re a lawyer, not to give legal advice. But this is another problem that we’re facing in this kind of wild west, still early stage of new legal services that we’re entering in.

So bottom line, how do you find an expert? Right now it’s very difficult. After my 3½ years of just doing e‑discovery, I’ve kind of figured out who the best are in different areas, who’s good and who’s not. But could I do it by just going online and looking at all the wild claims? No, probably not. So it’s pretty much word of mouth. You know, George Socha said he gave up  ranking companies. They’re not going to do that any more, which is probably a good thing. Maybe Gartner’s going to move into the field. They already are starting some ranking. But that’s more ranking of software, that’s not ranking of actual outside experts. So, the short answer to your question of how do you go about finding the right experts, is by word of mouth reputation, checking people out. Just the old fashioned way, like you would go to find any expert that you were searching for. You know, how would you find a good economist, things like that. It’s a difficult process and you have to do your homework and buyer beware. …

SCHIENEMAN: So then, the decision to charge ahead, after you get your specialist on board, to come up with a game plan, it’s probably at that point. I mean, the specialist you can’t – there aren’t enough of them, so at some point, you know, lawyers got to do what they normally do. So, I imagine that there has to be some good communication there as well.

LOSEY: Yeah. And with that we get back to the little analogy I’m using here of speaking French. Let’s say the specialist speaks French, or we used to call it computerese. You still hear that term much any more, Karl?

SCHIENEMAN: I have to tell you something funny. I was in a meeting in another city a couple days ago and was told by the lawyer that I was their favorite technology expert they had ever met. And I straddle both sides. I mean – but if you come at it too much in French, you lose people. I see exactly where you’re going.

LOSEY: Yeah. We used to call it computerese and I used to – you know, back in the eighties that would get a big laugh – but anyway, it’s true it’s gotten even worse because there’s more language, the systems are more complicated. So communication is a critical thing. I mean, getting back to my three-legged stool, the one leg is cooperation, but the other leg is having a functional interdisciplinary e‑discovery team. That’s why I call my blog e‑discovery team. Oh, by the way, did you notice I now have my blog with the domain name e‑discoveryteam.com so you don’t have to remember ralphlosey.wordpress, etc. Something I did over Christmas. So, that is critical to work with lawyers and IT people, working together, both speaking this kind of Creole-French-English combination if you will. You teach the English speakers, the regular lawyers, a little bit of tech talk so that they can understand and use the word deduplicate and then even go on and learn vertical and horizontal deduplication and know what the heck they’re talking about. That’s good. These is some basic terminology, basic French, that the English lawyer needs to learn and guys like us mustn’t forget our English. We need to put things into everyday language as well. We need to speak the King’s English or the judge’s English so that we don’t come across as people who are incomprehensible and thus worthless. I mean, language is the key to make a inter-disciplinary team work.

And before I forget, too, lest I be accused of not finishing my thought on the three-legged stool, the third leg is the one thing you’ve already been mentioning, but I’ll put a label on it, and that is using technology and the new methods that are being developed that take advantage of modeling, things like statistics and quality control. The other great paper that Jason R. Baron was the editor of is the Sedona paper on quality (The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process (2009).  (See my prior blog: Sedona on Quality: a Must-Read Commentary). These are the three things that we need to do in e‑discovery (and I’ll be coming out with a video blog on that soon): cooperation, working with teams, and using new  technologies and metrics.

SCHIENEMAN: The one area I want to sort of wrap up on in this space is – and you touched about on it with the wild claims that you run into from others about, you know, maybe the tools they have or the team they have in place and how easy it is. I have been seeing a lot of buzz and chatter about coming up with standards for a certified e‑discovery expert. Do you think we’re ready for that? Do you think that’s a solution?

LOSEY: Well, we’ve got to be careful what we’re talking about here. Coming up with standards is something a little different. Sedona has been working hard on standards and I think they’re doing a terrific job on it in the sense of best practices. I work hard on that. A lot of people work hard on that to try to have best practices. That’s different, I think, than this thing coming – this other moving coming out of the paralegal organization about certification. Certification without education is, in my view, not the way to go. The key thing, the critical thing, is education. That’s why I devote every Wednesday to go up to Gainesville and teach and so do a lot of other people who are now focusing on the academic world. And we’re all doing Legal Tech, we’re doing, you know, all kinds of CLE activities. E‑discovery has a tremendously committed group of lawyers who are focused on education and really it’s pretty impressive how many people donate and volunteer their time to do that. That’s, I think, the right way to go about it, to have education and bring up the quality of education. Not all CLE’s are created equal, as you know. Some CLE’s are just sales talk and the lawyers I think are catching on to that and they don’t want a sales talk CLE, they want real information.

But the kind of valid thing behind this whole certification movement is, well, how do you know? How do you know if this is real talk? How do you know if this guy really knows what he’s talking about? This is not unique to e‑discovery. This happens every time there’s a new area of law. I mean, I’ve seen it often through the course of my 30 year career. There didn’t used to be local bar certification of specialists when I started practicing. There weren’t any in Florida. I don’t know if there were in New York, Pennsylvania or elsewhere. But in the 80s in Florida it was just starting out. So in the course of my career the Florida Bar has, I don’t know, a dozen or more certifications as a specialist. If you’re not certified in that area, you’re not allowed to call yourself a specialist. I am not allowed to call myself a e‑discovery specialist. What I am allowed to say is that I concentrate my time in e‑discovery and just do e‑discovery. That’s the truth. But I cannot make a claim that I am a specialist. Why? Because there is no certifying body of The Florida Bar or anyplace else that will certify me as a specialist. Now you can draw your own conclusions about me by reading my three books, blah, blah, blah, but I am not making any claims in print or advertising that I am a specialist. This is how the Bar polices and controls this whole situation, the wild west situation, of who’s really got the skills and who doesn’t. So in that sense, this drive for certification has a lot of common sense behind it when we have so many people and so many vendors, but we’re not going to have vendor certification. The only thing we’re really going to have are professional certifications. Then the professionals will help you to get the right vendors and sort things out.

The problem with the Bars doing certification is that we’re still a long ways off from that. It took – I watched healthcare for instance – it took a good 20 years for them to come up with a healthcare certification. I remember one of my partners was doing that and they created the test and they finally did it. The funny thing was he helped write the test and then he didn’t pass it the first time he took it. And he’s a great healthcare lawyer. I mean, a lot of it is a testing game, too. Some people are good at testing. So it has to be meaningful certification and that either means it’s going to be done by the state bar associations, which I think it’s still a long way off, or it has to be done after completing an educational program. We’re having trouble getting rules, much less certifications from state Bars, so I think it’s going to have to come from someplace else. But it’s going to have to come out of meaningful education. I know I’m starting to sound like a broken record, but certification has to come out of completion of some kind of educational program, kind of like a diploma. To just create some sort of written test and have people take it, is not enough to be reliable, no matter who’s on the board. I think you have to show that they put in the time.

There’s an interesting little discussion going on in my blog about the amount of time needed to study e-discovery. I don’t know if you’ve seen it, but somebody left a comment regarding my statement that for a student to do really well in e-discovery, they will have to spend in the course of a semester 200, as much as 250 hours of study. If they put in that kind of time, if anybody does, 200, 250 hours, they’re going to have a good basic understanding of the field. But then I also went on to quote Malcolm Gladwell in his latest book, Outliers about 2,000 hours – and, by the way, you might want to read that book before New York Legal Tech because Malcolm is going to be one of the keynote speakers. I’m looking forward to hearing him because he’s one of my favorite authors and his book Outliers is fabulous and it includes a discussion about an attorney outlier – people that really achieve on the highest levels, which I consider, you know, either – I don’t like the fancy word, they’re a genius, but I like more the phrase a complete master of the subject. That’s from the old medieval tradition of being a master with apprentices, like Leonardo da Vinci was a master artist. If you’re a master craftsman and you’re a master of something as complicated as e‑discovery, or for that matter something as complicated as securities transactions or, you know, hostile takeovers, I mean, who knows what. You name it, there’s thousands, millions of very complicated fields. To attain that level of mastery according to Malcolm Gladwell, studies have shown that it takes about 10,000 hours. The Beatles got to be at the top, super good, better than everybody else, because they went to Berlin and they put in about 10,000 hours instead of partying in Liverpool. And that’s why when they came back from Germany, they were like, oh my god, this group is so great. That’s how they did it. That’s one of the many studies that Malcolm Gladwell offers. You want to be the best – you want to be a master of e‑discovery, then you’ve got to pay your dues and spend the time. There’s no shortcut. There’s no I’m so smart, I can do it.

So, to certify without also training is not the way to go. We need to offer training opportunities and education opportunities and then you just need to get out there and do it. My last 3½ years of limiting my practice to e-discovery has taught me by doing it, and doing it, and doing it – that allowed me to learn so much more than before. You’ve got to read and study, but then you also have got to get your hands dirty, work on these matters and a variety of different matters, and you can learn by doing, which honestly, that’s the way lawyers always learn. You know, they don’t call it legal practice for nothing.

SCHIENEMAN: Well, this has been obviously an issue that’s not going to go away quickly. It’s going to take some time to sort this out. But I appreciate your insights to this. Do you have any final predictions on how the specialization issue is going to play out in the coming year or decade?

LOSEY: I think the technology lawyer, information technology lawyer, electronic records lawyer is here to stay. We may stop calling ourselves e‑discovery specialists or lawyers because it’s like when a word gets used too much, it starts losing its meaning. But this function of having certain lawyers that try to stay current with the latest curve of technology is here to stay. That is because technology is not going to stagnate any time soon. We have lived in a world of constant change and that will continue throughout the rest of my life, I’m sure, and throughout the life of my children and probably my grandchildren. We’re going to be in an age of constant change, constant innovation, constant technological revolution, one after another. Information is going to keep getting more and more complicated and it is going to be more and more difficult for lawyers to keep up. So the kind of lawyers that love this sort of stuff, that like technology, that like learning, that like keeping up, that is going to be a role that will stay, but will constantly change. The name we give it may vary and differ, but that particular role is going to  stay. Not only is it here to stay, it’s going to get bigger and bigger and more important.



Raising the Bar – Judge Scheindlin Defines Gross Negligence in Spoliation

January 17, 2010

Judge Shira A. Scheindlin has written a new opinion, destined to be widely cited, that provides the “criteria a court should review in evaluating discovery conduct.” The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al.,2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order). Although Judge Scheindlin notes that a court’s decision to award sanctions is inherently fact intensive and based on a judge’s “‘gut reaction’ based on years of experience as to whether a litigant has complied with its discovery obligations and how hard it worked to comply,” she goes on to specify what failures she generally considers to be gross negligence, and not just simple negligence:

After a discovery duty is well established, the failure to adhere to contemporary standards can be considered gross negligence. Thus, after the final relevant Zubulake opinion in July, 2004, the following failures support a finding of gross negligence, when the duty to preserve has attached: to issue a written litigation hold, to identify the key players and to ensure that their electronic and paper records are preserved, to cease the deletion of email or to preserve the records of former employees that are in a party’s possession, custody, or control, and to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.

Id. at pg. 24 of Amended Order (all cites here are to pgs. in the Amended Order, not WL). Also see new footnote 99 added to the Amended Order clarifying that backup tapes need only be preserved where they are the sole source of relevant tapes (e.g., the active files of key players are no longer available). The Order withdrawing the first opinion and replacing it with the Amended Order is attached for clarification purposes.

This Amended Opinion and Order, which is subtitled “Zubulake Revisted: Six Years Later,” serves to raise the bar for the Bar. It provides a list of specific preservation activities that must be followed to avoid the charge of gross negligence and the sanctions that usually follow such a holding. It thus ups the ante for corporations and large organizations everywhere to take the preservation of ESI very seriously. They and their counsel will now all have to become little expert guinea pigs in the pole vaulting department, which is how most of us who specialize in e-discovery already felt anyway when it comes to ESI preservation.

Pension Committee provides a thoughtful analysis of the whole field of ESI spoliation and sanctions, especially on the issues of evaluation of levels of culpability and burden of proof. This is a scholarly opinion with citations from around the country. It is not only written in the compelling, erudite manner we have come to expect from Judge Scheindlin, but fills in several gaps in the law of spoliation. As Judge Scheindlin notes at page 6 of the opinion:

While many treatises and cases routinely define negligence, gross negligence, and willfulness in the context of tortious conduct, I have found no clear definition of these terms in the context of discovery misconduct. It is apparent to me that these terms simply describe a continuum. 9 Conduct is either acceptable or unacceptable. Once it is unacceptable the only question is how bad is the conduct. That is a judgment call that must be made by a court reviewing the conduct through the backward lens known as hindsight. It is also a call that cannot be measured with exactitude and might be called differently by a different judge. That said, it is well established that negligence involves unreasonable conduct in that it creates a risk of harm to others, but willfulness involves intentional or reckless conduct that is so unreasonable that harm is highly likely to occur.

She continues in this analysis of degree of culpability and makes the key observation that the “pure heart, empty head” argument is not a viable defense:

The standard of acceptable conduct is determined through experience. In the discovery context, the standards have been set by years of judicial decisions analyzing allegations of misconduct and reaching a determination as to what a party must do to meet its obligation to participate meaningfully and fairly in the discovery phase of a judicial proceeding. A failure to conform to this standard is negligent even if it results from a pure heart and an empty head.

Id. at pgs. 7-8.

The “pure heart, empty head” defense is still widely used by mea culpa prone counsel around the country today. From what I have heard, it was the main song of all of the lawyers accused of intentional misconduct in the Qualcomm spoliation trial this week in San Diego District Court. By the way, Judge Major is reported to have started the hearing by indicating her inclination to find that outside counsel were primarily to blame in the Qualcomm debacle, much to the relief of the few remaining in-house counsel at Qualcomm. A small army of pale Kravath lawyers and paralegals traveled from New York to handle the trial for  Qualcomm. (Kind of reminds you of Darth Vader defending the Emperor doesn’t it?) The Kravath team and their mountains of memos and deposition testimony have apparently saved the day for Qualcomm and given the six outside counsel accused of malfeasance a real headache, albeit an empty one, with a pure heart, I’m sure.

Judge Scheindlin takes pains in Pension Committee to point out the lack of evidence of intentional misconduct. Pension Committee is a case with over $550 million in damages at issue where defendants accused the multiple plaintiffs of spoliation and sought sanctions, including dismissal of the case. Defendants did not, however, accuse the plaintiffs of intentionally destroying or withholding evidence. This is in stark contrast to the facts of Qualcomm where strong evidence of intentional misconduct has been presented.

Pension Committee Introduction

As we have come to expect from Judge Scheindlin, she begins her opinion with well written big-picture background, complete with a memorable cultural reference, this time from Spanish philosopher George Santayana.

In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party. As discussed six years ago in the Zubulake opinions, when this does not happen, the integrity of the judicial process is harmed and the courts are required to fashion a remedy. Once again, I have been compelled to closely review the discovery efforts of parties in a litigation, and once again have found that those efforts were flawed. As famously noted, “[t]hose who cannot remember the past are condemned to repeat it.” 1 By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records, will inevitably result in the spoliation of evidence.

Id. at pgs. 1-2.

Following the effective tell, tell and tell style of presentation, Judge Scheindlin explains near the beginning (pg. 5) of her 88 page order what her opinion will cover:

Because this is a long and complicated opinion, it may be helpful to provide a brief summary up front. I begin with a discussion of how to define negligence, gross negligence, and willfulness in the discovery context and what conduct falls in each of these categories. I then review the law governing the imposition of sanctions for a party’s failure to produce relevant information during discovery. This is followed by factual summaries regarding the discovery efforts – or lack thereof – undertaken by each of the thirteen plaintiffs against whom sanctions are sought, and then by an application of the law to those facts. Based on my review of the evidence, I conclude that all of these plaintiffs were either negligent or grossly negligent in meeting their discovery obligations. As a result, sanctions are required.

Analytical Framework and Applicable Law

With this clear roadmap in place, Judge Scheindlin next provides an analytical framework for her opinion with an overview of the applicable law. In this case there was no evidence of intentional destruction, as previously noted, but there was also clear evidence that documents were lost or destroyed. In this situation the court was called upon to decide whether to award sanctions, and if so, how severe. In a prior blog William Hamilton proposed a three dimensional analytical framework called a sanctions cube, with three criteria of wilfulness, prejudice and time. Judge Scheindlin’s model in Pension Committee uses a four-dimensional approach. She includes wilfulness and prejudice, but instead of time, looks at burden of proof and then also adds a fourth dimension of remedy.

The question, then, is whether plaintiffs’ conduct requires this Court to impose a sanction for the spoliation of evidence. To answer this question, there are several concepts that must be carefully reviewed and analyzed. The first is plaintiffs’ level of culpability — that is, was their conduct of discovery acceptable or was it negligent, grossly negligent, or willful. The second is the interplay between the duty to preserve evidence and the spoliation of evidence. The third is which party should bear the burden of proving that evidence has been lost or destroyed and the consequences resulting from that loss. And the fourth is the appropriate remedy for the harm caused by the spoliation.

Id. at pgs. 5-6.

The Culpability Continuum

All commentators agree that the level of culpability or wilfulness is a continuum, with evil intent on one side, innocent mistake on the other, and lots of gray area in between. These in-between-areas are key to discovery sanctions analysis. Their jurisprudence is explained by Judge Scheindlin in the following paragraphs:

“Gross negligence has been described as a failure to exercise even that care which a careless person would use.” 11 According to a leading treatise – Prosser & Keeton on Torts – most courts find that gross negligence is something more than negligence “and differs from ordinary negligence only in degree, and not in kind.” 12

The same treatise groups willful, wanton, and reckless into one category that requires “that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.” 13

Applying these terms in the discovery context is the next task. Proceeding chronologically, the first step in any discovery effort is the preservation of relevant information. A failure to preserve evidence resulting in the loss or destruction of relevant information is surely negligent, and, depending on the circumstances, may be grossly negligent or willful. 14 For example, the intentional destruction of relevant records, either paper or electronic, after the duty to preserve has attached, is willful. 15 Possibly after October, 2003, when Zubulake IV was issued, 16 and definitely after July, 2004, when the final relevant Zubulake opinion was issued, 17 the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information. 18

Id. at pgs. 8-9.

This sends a clear message to litigants and the Bar that they must, at the very least, send out written hold notices. If you do not, then, in Judge Scheindlin’s court at least, you have failed to “exercise the care that even a careless person would use.” That is not good. It puts you well on the path to sanctions.

Although I suspect that Pension Committee will be unwelcome news to most of the Bar, and I have already heard plenty of grumbling, I must confess that I welcome this opinion on preservation holds. It justifies my own prior behavior with lit-holds. Many have thought that I was an extremist to insist, sometimes to the point of rudeness, that hold notices be made the highest priority, that they go out by email, be well written, and go out right away. Some of my co-counsel in other firms have suggested that I am way too hyper on this point, that I tend to get a bit paranoid and obsessive (and I confess there is some truth to all of that!), and I certainly can be an annoying nag. But now this opinion by Judge Scheindlin justifies my paranoia. There may be no forgiveness for errors on this duty. My level of concern and intensity when it comes to preservation, especially the threshold act of notification, is by Pension Committee made into the actions expected, no demanded, from a reasonable man. This reminds me of another famous quote of George Santayana: Sanity is a madness put to good use.

Judge Scheindlin does not stop there, she also goes on to consider negligence and gross negligence in the collection and review stages of e-discovery. These are stages in which I am slightly less paranoid and so less comforted by her raising the bar. Here are her words at page 10:

The next step in the discovery process is collection and review. Once again, depending on the extent of the failure to collect evidence, or the sloppiness of the review, the resulting loss or destruction of evidence is surely negligent, and, depending on the circumstances may be grossly negligent or willful. For example, the failure to collect records – either paper or electronic – from key players constitutes gross negligence or willfulness as does the destruction of email or backup tapes after the duty to preserve has attached. By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability. Similarly, the failure to take all appropriate measures to preserve ESI likely falls in the negligence category. 19 These examples are not meant as a definitive list. Each case will turn on its own facts and the varieties of efforts and failures is infinite. I have drawn the examples above from this case and others. Recent cases have also addressed the failure to collect information from the files of former employees that remain in a party’s possession, custody, or control after the duty to preserve has attached (gross negligence) 20 or the failure to assess the accuracy and validity of selected search terms (negligence). 21

The caveat concerning each case turning on its own facts and infinite variety of circumstances is wise, but will, I suspect, tend to get lost in the shuffle by lawyers and courts looking for clear cut black letter rules. Many will try to turn this list of possible examples into a definitive list, free of disclaimers. They will, for instance, argue that the failure to collect ESI from key players is always gross negligence. But as Judge Scheindlin realizes, in the legal universe of infinite facts, there will be many circumstances when that is not even simple negligence, much less gross. Also, lest we forget, it is never possible to collect all-and-everything. All we can ask is a reasonable effort. Judge Scheindlin’s opinion is, I believe, based on the premise that “any and all” and “perfection” make no sense and have no business in the world of e-discovery. After all, her second sentence in the opinion states that: “Courts cannot and do not expect that any party can meet a standard of perfection.” The attempt to oversimplify her ruling by reducing it to black letter rules will, if allowed, raise the bar higher than Judge Scheindlin intended.

Prejudice Caused by Spoliation Burden of Proof

Judge Scheindlin then goes on to explore the second of her four criteria, which Hamilton calls “prejudice” and she calls: “the interplay between the duty to preserve evidence and the spoliation of evidence,” and her third factor, which she calls “burden of proof.” Judge Scheindlin makes another important contribution here by recognizing that the degree of prejudice suffered by the requesting party cannot be determined without also exploring the question of burden of proof. As I have often noted before, this is the classic pig in a poke situation. See: Textbook Case of Discovery Abuse Exposes a Fallacious “Pig in a Poke” Defense; and, The old “Sick Computer,” “Pig in a Poke,” and “Somnambulist” defenses were tried again recently with no success. The evidence is gone, so how do you know whether it was harmful or not? Here is how Judge Scheindlin frames the problem at page 13:

It is often impossible to know what lost documents would have contained. At best, their content can be inferred from existing documents or recalled during depositions. 28 But this is not always possible. Who then should bear the burden of establishing the relevance of evidence that can no longer be found? And, an even more difficult question is who should be required to prove that the absence of the missing material has caused prejudice to the innocent party.

She begins to provide the answer by noting that it depends on the severity of the sanction considered.

The burden of proof question differs depending on the severity of the sanction. For less severe sanctions – such as fines and cost-shifting – the inquiry focuses more on the conduct of the spoliating party than on whether documents were lost, and, if so, whether those documents were relevant and resulted in prejudice to the innocent party. As explained more thoroughly below, for more severe sanctions – such as dismissal, preclusion, or the imposition of an adverse inference – the court must consider, in addition to the conduct of the spoliating party, whether any missing evidence was relevant and whether the innocent party has suffered prejudice as a result of the loss of evidence. …

It is not enough for the innocent party to show that the destroyed evidence would have been responsive to a document request. The innocent party must also show that the evidence would have been helpful in proving its claims or defenses – i.e., that the innocent party is prejudiced without that evidence. Proof of relevance does not necessarily equal proof of prejudice.

In short, the innocent party must prove the following three elements: that the spoliating party (1) had control over the evidence and an obligation to preserve it at the time of destruction or loss; (2) acted with a culpable state of mind upon destroying or losing the evidence; and that (3) the missing evidence is relevant to the innocent party’s claim or defense. 30

Relevance and prejudice may be presumed when the spoliating party acted in bad faith or in a grossly negligent manner. “Where a party destroys evidence in bad faith, that bad faith alone is sufficient circumstantial evidence from which a reasonable fact finder could conclude that the missing evidence was unfavorable to that party.” 31 Although many courts in this district presume relevance where there is a finding of gross negligence, application of the presumption is not required. 32 However, when the spoliating party was merely negligent, the innocent party must prove both relevance and prejudice in order to justify the imposition of a severe sanction. 33 The innocent party may do so by “adduc[ing] sufficient evidence from which a reasonable trier of fact could infer that ‘the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction.’” 34 “In other words, the [innocent party] must present extrinsic evidence tending to show that the destroyed e-mails would have been favorable to [its] case.” 35 “Courts must take care not to ‘hold[ ] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence,’ because doing so ‘would . . . allow parties who have . . . destroyed evidence to profit from that destruction.’” 36

Id. at pgs. 13-17.

Judge Scheindlin than goes on to establish a new burden shifting procedure to counter the pig in a poke problem in a way that is fair to both the requesting and producing parties:

No matter what level of culpability is found, any presumption is rebuttable and the spoliating party should have the opportunity to demonstrate that the innocent party has not been prejudiced by the absence of the missing information. 37 If the spoliating party offers proof that there has been no prejudice, the innocent party, of course, may offer evidence to counter that proof. While requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute. If a presumption of relevance and prejudice were awarded to every party who can show that an adversary failed to produce any document, even if such failure is completely inadvertent, the incentive to find such error and capitalize on it would be overwhelming. This would not be a good thing.

To ensure that no party’s task is too onerous or too lenient, I am employing the following burden shifting test: When the spoliating party’s conduct is sufficiently egregious to justify a court’s imposition of a presumption of relevance and prejudice, or when the spoliating party’s conduct warrants permitting the jury to make such a presumption, the burden then shifts to the spoliating party to rebut that presumption. The spoliating party can do so, for example, by demonstrating that the innocent party had access to the evidence alleged to have been destroyed or that the evidence would not support the innocent party’s claims or defenses. If the spoliating party demonstrates to a court’s satisfaction that there could not have been any prejudice to the innocent party, then no jury instruction will be warranted, although a lesser sanction might still be required.

Id. at pgs. 17-18.

Remedies

Judge Scheindlin adds a fourth dimension of remedies to her analytic framework, which I suppose makes it into a hypercube, and not just a cube as Hamilton posits. Judges have broad discretion to impose a remedy they deem appropriate under the circumstances. In cases of non-production of evidence appropriate sanctions should:

(1) deter the parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore ‘the prejudiced party to the same position [it] would have been in absent the wrongful destruction of evidence by the opposing party.’” 40

Id. at pg. 19, citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2nd Cir. 1999) (quoting Kronisch, 150 F.3d at 126).

In choosing a sanction courts should be cautious and:

always impose the least harsh sanction that can provide an adequate remedy. The choices include – from least harsh to most harsh – further discovery, 41 cost-shifting, 42 fines, 43 special jury instructions, 44 preclusion, 45 and the entry of default judgment or dismissal (terminating sanctions). 46 The selection of the appropriate remedy is a delicate matter requiring a great deal of time and attention by a court.

Id. at 19-20.

In Pension Committee the defendants asked for the most extreme sanction of all, dismissal of the case. Judge Scheindlin denied this remedy as inappropriate to the facts. She suggested this ultimate remedy is only appropriate in cases of intentional bad faith conduct, such as when there is perjury, evidence tampering, or intentional destruction of ESI by wiping out a computer hard drive. Id. at pg. 20. Judge Scheindlin instead thought that some form of adverse inference instruction was appropriate against the various plaintiffs in Pension Committee. She then has an intersting discussion on the many forms or types of instructions:

Like many other sanctions, an adverse inference instruction can take many forms, again ranging in degrees of harshness. The harshness of the instruction should be determined based on the nature of the spoliating party’s conduct — the more egregious the conduct, the more harsh the instruction.

In its most harsh form, when a spoliating party has acted willfully or in bad faith, a jury can be instructed that certain facts are deemed admitted and must be accepted as true. 49 At the next level, when a spoliating party has acted willfully or recklessly, a court may impose a mandatory presumption. 50 Even a mandatory presumption, however, is considered to be rebuttable. 51

The least harsh instruction permit (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party. If it makes this presumption, the spoliating party’s rebuttal evidence must then be considered by the jury, which must then decide whether to draw an adverse inference against the spoliating party. 52 This sanction still benefits the innocent party in that it allows the jury to consider both the misconduct of the spoliating party as well as proof of prejudice to the innocent party. 53 Such a charge should be termed a “spoliation charge” to distinguish it from a charge where the a jury is directed to presume, albeit still subject to rebuttal, that the missing evidence would have been favorable to the innocent party, and from a charge where the jury is directed to deem certain facts admitted.

Id. at Pgs. 21-23.

Judge Scheindlin then goes on to consider another remedy near and dear to any litigants heart – money. She decides that monetary sanctions are also an appropriate remedy against the plaintiffs in this case. Here is her reasoning:

“Monetary sanctions are appropriate ‘to punish the offending party for its actions [and] to deter the litigant’s conduct, sending the message that egregious conduct will not be tolerated.’” 54 Awarding monetary sanctions “serves the remedial purpose of compensating [the movant] for the reasonable costs it incurred in bringing [a motion for sanctions].” 55 This sanction is imposed in order to compensate the Citco Defendants for reviewing the declarations, conducting the additional depositions, and bringing this motion.

Id. at pgs. 23-24.

Conclusion

Judge Scheindlin is conscious of the fact that her articulation of gross negligence standards raises the bar and this will likely engender more spoliation practice, some of which may be of the “gotcha” type that she would like to avoid:

Finally, I note the risk that sanctions motions, which are very, very time consuming, distracting, and expensive for the parties and the court, 56 will be increasingly sought by litigants. This, too, is not a good thing. For this reason alone, the most careful consideration should be given before a court finds that a party has violated its duty to comply with discovery obligations and deserves to be sanctioned. Likewise, parties need to anticipate and undertake document preservation with the most serious and thorough care, if for no other reason than to avoid the detour of sanctions.

Id. at pg. 25.

Judge Scheindlin then goes on to observe that the Pension Committee case has required over three hundred hours of work by her and her staff. Their blended rate was only $30 per hour. Id. at FN 56. That is shocking on a number of levels and again shows the need for salary increases in the federal system. They have been frozen for too long and now need to be substantially increased.

One last piece of advice in Pension Committee should help the Bar to rise to the new heights of conscientiousness required in modern discovery practice. Judge Scheindlin points out five topics that are appropriate for questioning a witness in a spoliation dispute:

Which files were searched, how the search was conducted, who was asked to search, what they were told, and the extent of any supervision are all topics reasonably within the scope of the inquiry.

Id. at pg. 38.

A practice pointer naturally flows from this observation. The documentation of a company’s e-discovery efforts you should, at a minimum, address all of these points. A careful record should be kept as to exactly what was searched, who did the work, who supervised it (hint – it should be an expert), what the instructions were, and how the search was performed. If you can document the search efforts, the decisions you made and why, then you will be in a position to defend your search as reasonable. You can prove that you were not negligent, even though evidence was missed, maybe even important evidence.

Evidence will always be missed. The volumes of ESI are too high and the methods of search are too imprecise for total recall to be even remotely possible. In fact, 50% recall, or even far less, could be acceptable, even very good, in certain document collections for certain issues. We need to understand the bar we are measuring is reasonability of effort, not results.

It also depends upon the all important budget, which is why I always employ what I call bottom line driven search. I customize the scope of the search to match the budget of the case under the proportionality Rule 26(b)(2)(C). How many key players are appropriate to search in a case depends not only upon the complexity of a dispute, but upon the amount at issue. My patent of search methods that is now pending is based on this principle. I will go into some more details on such search methods in the upcoming event at LegalTech in New York that I am doing with Jason R. Baron on February 3, 2010, and then again at the Georgetown Academy events in March 2010.

Pension Committee was supposedly a $550 Million case, so extensive efforts to find relevant ESI might be appropriate; a number of custodians should have been searched. But obviously far less efforts are appropriate in a $1 Million case and the search should be designed accordingly. There is no such thing as an effective one size fits all search method. Expert customization is always required. Moreover, despite some vendor claims to the contrary, good software is just the beginning of the solution, not the entire solution itself. That is why I focus on the overall method and not on any particular tools.

It all comes back to how much truth you can afford. No one can afford “the truth, the whole truth, and nothing but the truth” in the field of ESI. There is not enough time and money in the world in a complex case like Pension Committee for that to happen. It is just not possible. Imperfection and mistakes must be tolerated in e-discovery. Sanctions should not be over-played. That is one reason Judge Scheindlin concludes her opinion with these words:

While litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation. All of the plaintiffs in this motion failed to do so and have been sanctioned accordingly.

Id. at pg. 85.

I know that Judge Scheindlin understands the impossibility of perfection and need for proportionality in e-discovery, but will all of the lawyers and judges who read Pension Committee and its gross negligence lists? Time will tell. I hope so, for as George Santayana said: Intolerance itself is a form of egoism, and to condemn egoism intolerantly is to share it.


The “Bray & Gillespie” Saga Ends with an Incredible Story of a Phone Call

January 12, 2010

Judge Mary S. Scriven in an Order dated January 5, 2010, affirmed in part Magistrate Judge Spaulding’s prior order dismissing plaintiff’s case with prejudice. Bray & Gillespie III In so doing, Judge Scriven tells a story of a simple telephone call that took place after Judge Spaulding’s recommended dismissal order in Bray & Gillespie II. Bray & Gillespie Management LLC v. Lexington Ins. Co.2009 WL 2407754 (M.D.Fla. August 3, 2009). See my prior blog on these cases, and Bray & Gillespie I at: The Danger of Refusing to Cooperate in e-Discovery and Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education.

The closing story in Bray & Gillespie III will, I predict, be discussed in e-discovery circles and legal ethics circles for years to come. Here, in Judge Scriven’s own words, is the surprise phone call story of Bray & Gillespie III.

Plaintiff’s most recent substitute counsel, with the assistance of Plaintiff’s computer forensics expert, made a simple telephone call to the software provider and reviewed the IQ Ware computer software system used to capture and produce room folios for the Treasure Island Resort Property and learned two significant and incredible facts. First, Plaintiff, despite all previous demands and court orders for this discovery and despite being under threat of having its entire case dismissed and its counsel severely sanctioned, had never even consulted its software provider to attempt to retrieve the archived documents. Second, the archived files are likely retrievable with minimal effort and at minimal expense and could likely render all folios available for review for the relevant time period — some two years and four months after they were first requested for production by Defendant in discovery and some twenty months after Plaintiff was first ordered by the Court to search thoroughly for and disclose the folio files. Thus, on December 3, 2009, during the Evidentiary Hearing, Plaintiff for the first time disclosed the likely existence of additional Treasure Island room folios and asked that it be allowed, without sanction, again, to cure its abject failure to make complete review and production, claiming that the folios can likely be produced if discovery is, now on the eve of trial, reopened and extended for another four to six week period.

Incredible Ethical Challenges Created by High Technology

Judge Scriven describes this revelation of omitted actions as incredible. That implies highly unusual. But, as a close student of legal practice in e-discovery in America today, it appears to me that their actions all too common, distressingly so. The profession as a whole is critically challenged by technology and the transformation of written evidence. It has all happened much too fast for many lawyers. They do not know how to make that simple telephone call, nor what to say if they did. Many, many attorneys do not work with a forensic expert when needed. They do not work in a bona fide e-discovery team. They have never even heard of such a thing. They do not even <horrors> read my blog!

Although smart, and otherwise generally well-educated, most lawyers suffer from a huge technology knowledge gap. They do not really understand much of the science and engineering of the computer driven world in which they live. This is not something which can be, or should be, easily sluffed off. Indeed, the problem has become so bad as to become an ethical issue.

Here are the two ABA Model Rules of Professional Conduct most implicated by this predicament. These model rules have been adopted by all states with some slight revisions. These fundamental requirements are basic to professional practice and their violation can subject an attorney to a variety or public and private punishments, including, if often repeated after warnings, disbarment.

Advocate – Rule 1.1 COMPETENCE: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Rule 1.3 DILIGENCE: A lawyer shall act with reasonable diligence and promptness in representing a client.

These two rules of ethics are the cornerstone of my talks on e-discovery and have been mentioned here often before, both express and implied. Their application to Bray & Gillespie is obvious. Be diligent and make the call. If you do not know how, ask for help. Have a forensic expert with you. If need be, have someone else make the call for you. Your clients deserve it. The Bar demands it.

Sanctions Against the Party, But Not the Attorneys

In spite of the actions of Plaintiff’s prior counsel, Judge Scriven reversed, in part, Magistrate Judge Spaulding’s last sanction order in this case. Judge Spaulding had recommended that the plaintiff’s entire case be dismissed with prejudice.Bray & Gillespie II. Judge Scriven in Bray & Gillespie III affirmed the dismissal with prejudice of all claims related to the last hurricane at issue, Jeanne, but let stand the claims for the earlier hurricanes, Charley and Francis. Judge Scriven agreed with Judge Spaulding’s finding of bad faith conduct concerning the non-production of electronic room folios records, but found that the prejudice to defendant of these actions was limited to the claims for loss of income from hurricane Jeanne.

Judge Scriven also taxed fees against the Plaintiff of $75,000 as an additional sanction, but did not penalize Plaintiff’s prior counsel. Judge Spaulding in Bray & Gillespie II had sanctioned these attorneys for not producing the room folios records. Judge Scriven’s order thus reversed Judge Spaulding on this point, even though she knew that they had not made the simple phone call. The opinion does not provide an explanation, but I suspect Judge Scriven realizes the challenges the average attorney has with technology and may want to give the Bar more warnings before imposing monetary sanctions on outside counsel. (Note, this order does not pertain to an earlier sanctions order against other attorneys for the plaintiff where a national law firm’s attorneys and the firm itself were sanctioned. Bray & Gillespie I. Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009))

Sanction of Dismissal for e-Discovery Misconduct

In dismissing a third of Plaintiff’s claims based on e-discovery misconduct, Judge Scriven specifically notes her obligation under Rule 37 to send a message to other litigants (and their attorneys):

The Court is mindful that the sanction should not be overly harsh, but should be sufficient both to remedy the immediate prejudice suffered by the Defendant and to serve as an example to other parties to “insure the integrity of the discovery process.” Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982).

Judge Scriven then goes on to explain why it was appropriate to dismiss a third of plaintiff’s case for the misconduct of several of its attorneys.

Plaintiff has acted willfully and in bad faith in not producing timely all discovery available and related to the Treasure Island room folios, and, in so doing, Plaintiff has evidenced a pattern of inexcusable disregard for the authority of this Court and the larger civil discovery process. The fact that Plaintiff’s newest counsel discovered with relative ease the existence of this failure and a readily available cure for the gap in discovery highlights Plaintiff’s failure and the failure of its prior counsel in this regard. Therefore, the Court sustains the Magistrate Judge’s finding that Plaintiff’s failure to produce the demanded and court ordered discovery evidences a pattern of inexcusable disregard for the authority of this Court and the larger civil discovery process and warrants imposition of substantial ameliorative and punitive sanctions. …

Further, the Court must be mindful that Plaintiff, by its actions and omissions, has forced the Court to concern itself with whether the Plaintiff’s conduct, if not appropriately sanctioned, would cause “`other parties to . . . feel freer than . . . Rule 37 contemplates they should feel to flout other discovery orders of other District Courts.’” Aztec Steel Co., 691 F.2d at 481 (quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)). To this point, if the only sanction ordered in such scenarios is an extension of the discovery period upon being “caught” in flagrant violation of Court orders demanding timely disclosure, such delays in compliance would be undeterred. Finally, the sanction of costs alone has been previously attempted and has failed in this case as an incentive to force proper compliance.

Thus, as the half-measure of allowing partial introduction of the room folios is untenable, the delay in the trial and the attendant expense to the Defendant is no remedy, and cost-only sanctions have proven ineffective, the Court finds that the most appropriate remedy is to DISMISS with prejudice Plaintiff’s claim for damages arising from or related to any alleged interruption of business at the Treasure Island Property caused by Hurricane Jeanne.

Conclusion

The sad saga of Bray & Gillespie now appears to have come to an end. There is a small chance of an eventual review and discussion by the Appeals court after trial, the Eleventh Circuit, but I doubt it. In any event, there are important social and ethical lessons to be learned from this case. It is not, as some have suggested, on the same level of bad faith as Qualcomm, which involved intentional misconduct by both the plaintiff and its attorneys. No, this appears to me to be bad faith born out of technological challenges and a fear based refusal to cooperate. Moreover, I have seen no discussion in the Bray & Gillespie opinions of misconduct by the parties; it all appears to have been done by their attorneys, both inside and out.

These distinctions from Qualcomm are ultimately what make Bray & Gillespie so important. These decisions taken together illustrate how the refusal to cooperate can harm the client. They show the importance of competent counsel, of diligent counsel. In the right hands one simple telephone call was able to clear up years of confusion and delay.

The call should have been made at the beginning of the case, not the end. E-discovery lawyers must be brought into a case when it first starts, not when it is falling apart. The obvious competence of successor counsel here was too little, too late. It did nothing but put the final nails in the coffin for the poor plaintiff by making obvious the magnitude of prior counsel’s failures. Yet in how many cases now pending in state and federal court is that simple telephone call made at any time in the case, early or late? Counsel here were not personally sanctioned, but a message has been sent. The integrity of the discovery process is important as Judge Scriven’s opinion recognizes and will be insured by future actions of the court. Counsel that tarries in inviting e-discovery specialists to the table at the beginning of the case, do so at their own peril.


4 Reasons to Learn e-Discovery and Other Smart Aleck Advice

January 9, 2010

This vlog is a six minute video from the last day of class on e-discovery at the University of Florida. Holland & Knight’s William Hamilton and I serve as adjunct professors at the College of Law to try to pass on what we know about the subject to the next generation. A basic understanding of the subject takes a few hundred hours and, if a student works hard, can be accomplished in one semester. According to Malcolm Gladwell, and I agree, to go on and obtain complete mastery of any complex task like this takes 10,000 hours. See: Inspector Clouseau and the Insights of Judge Facciola and Malcolm Gladwell Suggest a Bright Future for e-Discovery Lawyers. Such a long learning journey requires a motivational start and reasoned perseverance. The legal profession needs more people to take this journey, and soon, if our system of justice is to continue. May this video prod and encourage a few more students and practitioners in that direction.

4 Reasons to Learn e-Discovery and Other Advice

4 Reasons to Learn e-Discovery and Other Advice

This movie requires Adobe Flash for playback.

Click on the 4 arrows in the lower right hand corner to enlarge for best viewing.