Good News? Bright Line Emerges On When To Pull Lit-Hold Triggers

August 30, 2010

When I speak to e-discovery experts of all kinds about preservation, be they law firm lawyers, big or small, in-house corporate counsel, government lawyers, scholars and academics, insurance company lawyers, paralegals, lit-support, vendors, or technology gurus, they all have a common refrain. They all lament about the murky issue of when a duty to preserve is triggered. As David Letterman said: “Next in importance to having a good aim is to recognize when to pull the trigger.”

The general rule of law is simple, but vague. A duty to preserve is triggered when litigation is reasonably foreseeable. But when is litigation reasonably foreseeable? Whole treatises have been written 0n this issue and how to make the determination. Best among them is The Sedona Conference’s Commentary on Legal Holds: The Trigger & The Process (August 2007 Public Comment Version) (The preservation duty is either triggered by service of process or earlier by “notice of a ‘credible threat’ of litigation.”) It reminds me of what Letterman says: “Traffic signals in New York are just rough guidelines.”

One case I have written about before went so far as to find that a duty to preserve arose eight years before suit was filed! Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., 2009 WL 910801 (D.Utah March 30, 2009). Magistrate Judge David Nuffer reached this clairvoyant trigger date based upon his supposition that everyone in the floppy disk industry should have known they would be sued for patent infringement someday. I figured this bizarre opinion would be appealed and reversed. But the magistrate a year later denied the motion for sanctions, stopping any appeal to the District Court Judge, unless it is by the moving party. Phillip M. Adams & Associates, L.L.C., v. Dell, Inc, 2010 WL 2977228 (D. Utah July 21, 2010). Too bad that moots my bet with a New Yorker turned Texan, Craig Ball, who disagreed with my critiques of this case and bet that the hair-trigger hold opinion would be upheld on appeal. Reminds me of a David Letterman joke:

People say New Yorkers can’t get along. Not true. I saw two New Yorkers, complete strangers, sharing a cab. One guy took the tires and the radio; the other guy took the engine.

Lawyers, paralegals, and others charged with deciding whether to implement a litigation hold, which is often a very difficult, expensive and troubling procedure, all wish for some kind of bright line. They want a more certain guide than reasonable foreseeability as to when to start the expensive preservation procedures. By the way, a litigation hold is not just a preservation notice and is far from a simple form, as most still wish. It is a process. This was explained well by Craig Ball in a vendor White Paper he wrote recently with Brad Harris: The Enlightened Legal Hold.

No. A litigation hold is not just something you set and forget. It’s a whole journey. And depending on the company and the threatened litigation, it can be a very expensive trip indeed. It is not a process to invoke lightly. It could well cost a large company many thousands of dollars to implement and could burden and disrupt many people. As Letterman said: “Sometimes something worth doing is worth overdoing.”

You do not want to guess wrong, start an expensive process, only to learn later that it was a false alarm. You tell everyone the company is about to be sued and then nothing happens. In the meantime the emails pile up. Pretty soon you become like the boy who cried wolf and no one takes you seriously. Your overused process becomes a joke. That is not a good thing. You want to be sure that when you invoke a litigation hold you are not making a mistake.

Against this backdrop, the ruling in a new case out of the Eastern District of New York suggesting a bright line for hold triggers seems like good news. Siani v. State University of N.Y. at Farmingdale, 2010 WL 3170664 (E.D.N.Y., Aug. 10, 2010). But, as they say, be careful what you wish for.

Siani v. SUNY Farmingdale

Siani is a pro se case by a disgruntled professor, Dominick Siani, who claims age discrimination. Professor Siani teaches business and is a CPA. As Letterman says: “There’s no business like show business, but there are several businesses like accounting.” Professor Siani likes to sue his university employer and has apparently been reading up on e-discovery recently because he filed a motion seeking a “’finding of adverse inference’ based on the defendants’ alleged spoliation of electronic records.” Id. at *1. Based on the motion and opposing motions and affidavits, Magistrate Judge William D. Wall responded to this pro se tempest by scheduling an evidentiary hearing. Pro se or not, Judge Wall was not pleased by the defense witness testimony. You wonder if he was thinking what Letterman is famous for saying: “Sometimes when you look in his eyes you get the feeling that someone else is driving.”

Judge Wall begins his analysis with the key, threshold question as to when the defendant’s duty to preserve begins. He begins the legal discussion in the tradtional way by citing to Zubulake, which in turn quoted Fujitsu:

As will be discussed in greater detail later, a duty to preserve evidence “arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake v. UBS War-burg LLC (“Zubulake IV”), 220 F.R.D. 212, 216 (S.D.N.Y.2003) (quoting Fujitsu Ltd. v. Federal Ex-press Corp., 247 F.3d 423, 436 (2d Cir.2001)).

Then he points to the facts of the case, where the lawsuit was  filed January 30, 2009, but Professor Siani claims the University employer should have instituted a lit-hold a year earlier, in late January 2008. That was when the Professor wrote a really stern letter to the President of the University expressing his concerns about “Potential Discriminatory Behavior,” noting his belief that there existed “facts and circumstances that support a prima facie case of age discrimination, disparate treatment and retaliation regarding … the designation of the Business Management Department Chair.” Id. I am guessing here that Professor Siani wanted that position, but did not get in it, and it instead went to a younger professor. So he was griping to the President, noting that “he would be pursuing several paths of investigation, including the SUNY Discrimination Complaint Procedure and FOIA requests.” Id.

Note that the good professor did not expressly threaten litigation and this was not even a letter from a lawyer. Still, he argued that this letter should have triggered SUNY’s duty to preserve and the university should have responded by commencing expensive, extensive, lit-hold procedures. The university did nothing of the sort and people continued their usual email deletion procedures. It did not start a litigation hold process until late July 2008 when notified that Professor Suni had filed an EEOC complaint. That is when defendants’ concede their duty was triggered, not before.

Bright Line Duty To Preserve

Now we come to the court’s statement of a bright line trigger, one which seems clear enough, but you may still not like. It is not what you would expect from the limited statement of facts I have provided so far. Judge Wall did not agree that the filing of the EEOC was a bright line trigger. No, he found that the duty to preserve had arisen before that. But, he did not agree it was triggered by the Professor’s letter either. The bright line was found in the invocation of  work-product by the university’s lawyers.

Yes, defense counsel was hung by their own petard. To add yet one more old apt saying, defense counsel tried to have their cake and eat it too, and the Judge would have none of that. They went too far. It is simple logic. Consider the statutory definition of work product protection in Rule 502, Federal Rules of Evidence:

(2) “work product protection” means the protection for materials prepared in anticipation of litigation or for trial, under applicable law.

If you assert facts that allow you to claim the additional privacy protections afforded by an attorney work-product privilege, the right that an attorney has to keep his communications, actions, thoughts, and mental impressions of counsel secret, then these same facts also show that litigation was reasonably anticipated. That is because the factual basis for work-product and preservation are logically consistent, if not identical. If you are preparing for litigation, and thus entitled to the secrecy protections of the work-product doctrine, then you must anticipate litigation and so have a duty to preserve. Why would you prepare for something that you were not anticipating?

There is one nearly inviolate rule in the Law, never say never. I cannot think of a situation where the reasonable invocation of the work product privilege would not also create a duty to preserve. But that does not mean that some strange fact pattern out there may well exist, or arise someday, where the two do not go hand in hand. It just means I cannot think of one now. I exclude  facts where attorneys unreasonably or improperly invoke the work-product privilege, although I readily concede it happens all of the time. I assume if this happened, the attorneys would admit their mistake and not try to hang onto the work-product privilege. It is foolish not to admit a mistake and can lead to mean-spirited arguments you’ll later regret, as we see here. David Letterman said it well: “The worst tempered people I have ever met were those who knew that they were wrong.”

If you are going to eat your cake, then you can’t have it too. Choose one or the other, but don’t choose both like defense counsel did in Siani v. SUNY Farmingdale.

Defense counsel in Siani argued that certain documents dated February 2008 were protected by the work product doctrine, having been prepared “in anticipation of litigation.” Moreover, the facts showed that defense counsel was retained by the university because of and immediately after Professor Siani’s January 2008 stern letter to the President. By the way, did I mention that the good professor had sued the same university before, pro se, and won? Oh yeah. They apparently took him quite seriously. Defense counsel argued to the court that Siani had raised “concerns that he was a victim of ongoing age discrimination” at a meeting in January 2008, and that “[l]itigation was therefore reasonably foreseeable” as of that date. Id. at *5. As David Letterman likes to say: “For the love of God, folks, don’t try this at home.”

The professor took delight in turning that argument around on defense counsel. As Letterman likes to say: “There is no off position on the genius switch.” The logic was impeccable and Judge Wall had to agree. He held that defense counsel had “cited no authority that would countermand the common sense conclusion that if the litigation was reasonably foreseeable for one purpose in January 2008, it was reasonably foreseeable for all purposes.” It is common sense because information is only qualified for protection as work product if it is generated or prepared in anticipation of litigation. See Eg., Wichita Eagle & Beacon Pub. Co. v. Simmons, 50 P.3d 66, 85 (Kan. 2002); Miller v. J.B. Hunt Transp., Inc., 770 A.2d 1288, 1291-93 (N.J. Super. Ct. App. Div. 2001).

Even though the defendant lost its logic-flawed argument on when the duty to preserve commenced, it still eventually prevailed over the pro se plaintiff on his attempt to win an adverse inference instruction. Here is how Judge Wall begins his analysis:

A showing of breach of the duty to preserve is only the first step in the imposition of an adverse inference ruling. A party seeking spoliation sanctions must also show that the relevant records “were destroyed with a culpable state of mind.” Toussie, 2007 WL 4565160 at *7 (citing Zubulake, 229 F.R.D. at 430). In the Second Circuit, this prong of the spoliation test can be “ ‘satisfied by showing that evidence was knowingly … or negligently’ destroyed.” Id. (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir.2002)). …

The defendants here did not, however, fail to implement a litigation hold “at the outset of litigation.” Indeed, they began the hold in July 2008, six months prior to the “outset of litigation.” The fact that they delayed the hold for months past the time when they could reasonably have anticipated the litigation does not per se amount to gross negligence. If a delay of any length was tantamount to gross negligence and thus illustrative of a culpable state of mind, there would not be two separate elements for the plaintiff to prove. But there are two elements, and establishing a breach of the duty to preserve is separate from establishing a culpable state of mind.

Id. at *8.

Unfortunately for defense counsel, they lose on the culpability point too. They may have implemented a lit-hold, but, according to the judge, they did not do it properly.

Thus, there was negligence, if not gross negligence, in the implementation of the preservation efforts, and the culpable state of mind requirement is satisfied in this Circuit by a showing of ordinary negligence. See Residential Funding, 306 F.3d at 101; see also Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413, *4 (S.D.N.Y. May 23, 2006). “Where only ordinary negligence is established … the party moving for an adverse inference instruction must prove relevance,” and I turn now to that element. Zubulake IV, 220 F.R.D. at 220; see also Phoenix Four, 2006 WL 1409413 at*4.

Id.

But the test for sanctions from spoliation continues to the last and final step, where the defense finally wins because Professor Siani fails to prove that anything relevant was actually destroyed. Here is how Judge Wall pulls it all together:

*9 To satisfy the third prong of the spoliation claim, Siani must establish that the missing emails were relevant evidence, and that the destroyed evidence would have been favorable to him. Residential Funding, 306 F.3d at 109; see also Zubulake V, 229 F.R.D. at 430. In this context, the term “relevance” means “something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.” Residential Funding, 306 F.3d at 108-09. Courts should take care not to hold the movant to “too strict a standard of proof regarding the likely contents of the destroyed evidence.” Id.

Relevance may be demonstrated in two ways. “First, it may be inferred if the spoliator is shown to have a sufficiently culpable state of mind.” Triple 8 Palace, 2005 WL 1925579, at * 8. Siani argues here that the defendants were grossly negligent and acted in bad faith and that relevance is thus established. I have found, however, that there was no gross negligence, and the record overall does not rise to “the egregious level seen in cases where relevance is determined as a matter of law.” Toussie, 2007 WL 4565160. “[O]nly in the case of willful spoliation is the spoliator’s mental culpability itself evidence of the relevance of the documents destroyed.” Here, I find that, based on the defendants’ submissions in opposition to the motion and on the testimony at the hearing, that there was no willful spoliation, although the preservation efforts on the part of the defendants were not exemplary.

The second way to establish relevance is for the moving party to submit “extrinsic evidence tending to demonstrate that the missing evidence would have been favorable to it.” Triple 8 Palace, 2005 WL 1925579, at * 8 (citation omitted). In order to obtain an adverse inference, the destroyed evidence must “have been of the nature alleged by the party affected by the destruction.” Id. In other words, Siani must present extrinsic evidence tending to show that the destroyed e-mails would have been favorable to his case, and where “ ‘there is no extrinsic evidence whatever tending to show that the destroyed evidence would have been unfavorable to the spoliator, no adverse inference is appropriate.’ ” Zubulake IV, 220 F.R.D. at 221 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y.1991).

Siani has produced no extrinsic evidence to meet this burden, instead relying exclusively on his argument that the defendants acted in bad faith. The parties agree that many of the emails on the missing logs were actually produced to Siani by the other parties. He might have come forward with samples of those emails showing that they were relevant and favorable to him and thus suggestive that any missing emails were also likely to be relevant and favorable. He has not done so. Indeed, he has not pointed to any emails as rising to the level of relevance and favorability that must be shown. Because there has been no showing of relevance, the motion for an adverse inference ruling must be denied.

Conclusion

What is the lesson here, aside from the obvious of how dangerous clumsy preservation efforts can be, even when you are only up against a pro se plaintiff, albeit a smart one? It is a lesson to attorneys everywhere. Do not claim work-product unless you really mean it. Do not invoke it unless you are contemplating litigation, either prosecuting or defending. If you are, at the same time go ahead and advise the client to initiate a lit-hold process. Think of these two doctrines as being tied at the hip. Change your way of thinking about work product to include preservation triggers. As Letterman says: “I’m just trying to make a smudge on the collective unconscious.”

A point of caution: do not confuse the client’s more limited attorney-client privilege with the attorney’s expansive work-product privilege. The attorney-client privilege basically applies to any confidential communication between an attorney and a client. There is absolutely no requirement that it pertain to litigation, either anticipated or not. So an attorney can certainly consult with a client in confidence about a claim or possible dispute, without their being a duty to preserve, so long as they do not think litigation is likely, and this thought is a reasonable one, not just delusional wishful-thinking. The communications would be protected by the attorney-client privilege, but not the more expansive work-product privilege. I can think of many examples of this. In fact, they are common to the practice of the law.

Attorneys should not invoke their work-product privilege lightly. The should not add this additional level of confidentiality and secrecy to their communications and actions unless they really believe litigation is reasonably likely. Attorneys should not to try to veil communications with work-product secrecy and at the same time allow clients to continue to delete emails and other ESI that is likely to be evidence. I for one cannot think of any circumstances where attorneys can enjoy the expanded protection that the work product privilege provides, without the client at the same time assuming the preservation burdens. As Judge Wall said, it’s a common sense conclusion.

This is the bright line – the proper invocation of the work-product privilege. This may not be the answer that attorneys were looking for, but at least it’s clear.

I leave you with a deep Letterman thought: “Everyone has a purpose in life. Perhaps yours is watching television.”

And a recent video of you know who doing one of his typical monologues:

3 Comments | Lawyers Duties, Spoliation/Sanctions | Permalink
Posted by Ralph Losey

America’s Got e-Discovery Talent – Part 3

August 21, 2010

Mary Mack:

I wanted to throw this out to you, Ralph and Brett, about waivers of privilege or trade secret by making things readily available on social medias. How is social media affecting those two areas?

Waiver By Unauthorized Disclosures in Social Media

Ralph Losey:

You threw that question at me privately a week ago by email. I guess it has come up for you as an issue. I don’t think that an employee’s unauthorized disclosure of something that maybe in-house counsel told them, that he then, on his own discloses online, without authority from the corporation, will be a waiver. Even though it is posted someplace that can be read by others. It is not a knowing, intentional waiver by the company. (Of course, once its out there it is probably too late to do anything more about it (you can’t un-ring a bell (or buzzer) for those who have heard it), but at least it should not justify further waivers and total loss.)

I hope that it is not so easy for a company’s attorney-client privilege to be waived. That is, after all, entitled to a higher level of protection than things like what you had for breakfast yesterday. (Speaking of a higher level, did you see Connor Doran’s kite flying act on AGT below? What an inspiration.) So, I hope that we’re not there yet. These battles haven’t been fought yet, but certainly I would fight to try to protect it. Now it’s another thing entirely if someone with authorization makes an intentional disclosure, but it’s hard to imagine people being that foolish.

Bret Anders:

I can say, at least in New Jersey on the attorney-client privilege issue, that no, we’re not there yet. There was recently a case, Stengart v. Loving Care, where an employee using her work computer accessed her Yahoo email account. It was a password protected account. She emailed her attorney about a potential lawsuit with the company and later on down the road, when the company imaged and examined her computer, they found the email in the temporary Internet files folder. They found copies of these email communications and the attorneys there held on to them for a period of time. Eventually they produced them in discovery and the plaintiff’s counsel argued that they were still privileged. Plaintiff argued that even though the company had a policy that stated the company reserves the right to monitor, and anything on the company’s computer was the company’s property.

The court held that the policy was unclear as to whether it applied to personal email accounts, as opposed to the corporate account. The court later on went so far as to say that even if the company had a very clearly written electronic communications policy, that unquestionably went to communications on personal email accounts, and that it would apply to communications with your attorney, that that would not be enough to waive the privilege. So at least New Jersey is going very far in protecting that privilege.

I think the open question still remains as to what would happen if the communication was sent using the corporate email account and assuming that there was a very clear policy that the company would monitor.  But at least as of you now, the New Jersey court still remains very protective of the privilege.

I would say one other practice point to consider is basically the privacy issue, especially with regard to international witnesses, or data coming from overseas, even though it’s on Facebook. Be cognizant of the differences in culture and law, where we, in essence, don’t think too much about privacy. It is exactly the opposite internationally.

Mary:

Ralph and Brett, you mentioned subpoenaing MySpace to get information, do you routinely subpoena first or do you contact and make requests more informally or formally of the witnesses that you’d like that social media information from?

Bret:

What I normally do is at least a two prong approach in the beginning. First we do our own Google search. We use our own means to see what is publicly available. Then I’ll typically have an interrogatory question (and/or a Request For Production) that asks for any Facebook, Myspace, or other social media accounts that they have, just to identify where it is (and/or demand production). Then we usually go from there, but at least in the first instance I’ll try to find it myself through publicly available information and then ask an interrogatory for which social media sites they frequent.

Mary:

Well, great. We’re going to have another webcast on social medias just exploring that at the beginning of September. You are all welcome for that. I want to turn it over to Ralph now for his trash talk on Florida A&M.

In re A & M Florida Properties II, LLC

Ralph:

Well, yes, I wrote an article about this, which I called, What Can Happen When Lawyers Delegate Their e-Discovery Duties to a Client. I invoked a cultural icon from the 1950s in this article, “Let George Do It.” Those of you who don’t remember the 50’s personally, I will tell you, Let George Do It was a popular radio show in the forties and fifties. It was about a detective named George Valentine where all of his clients came from reading a newspaper ad saying: (Click on the link if you don’t know what a newspaper is? You may recall your parents reading them in the morning when you were a child.)

Personal notice: Danger’s my stock in trade. If the job’s too tough for you to handle, you’ve got a job for me. George Valentine.

This popular show led to the catch phrase, let George do it, meaning to let another person perform an odious task for you; kind of a slacker’s credo. That’s what appears to have happened in In re A & M Florida Properties II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010).

Unfortunately, most trial lawyers today who are not e-Discovery specialists tend to take the attitude that when it comes to e-Discovery, that is something that they’d rather have George do. (I guess this is the trash talk part Mary was hoping for. But for some much funnier trash talk check out check out Doogie Horner below. Reminds me of Dilbert with a beard. I can’t believe he didn’t make the finals.)

Most law firms don’t have a full-time E-Discovery Georges like me who love to do that sort of stuff. So they either give it to a vendor, which is probably better than the alternative, because the alternative is, they give it to their client to do. They say to the client, here’s what the case is about, would you go out and find the relevant files that would have that information. They have the client and the client’s IT department do it. The client’s IT department does exactly what they’re told, and maybe they will run some key words, and they’ll go collect it, and then turn it in.

This Florida A&M Properties case stands for the proposition here quoted by Judge Gonzalez who, by the way, is very much a heavyweight judge that really knows a lot about the law. He’s the chief bankruptcy judge in Manhattan, Judge Arthur J. Gonzalez. When he saw what counsel had done here, he was very clear that this – this is not something that you can delegate. An attorney has to go out and personally do the search. I will tell you other judges are picking up on this. (See this good blog by Guidance on what a state judge did in Delaware.) Some of them are, maybe, going too far.

The tendency now is not to allow lawyers to just have their clients collect it, and for good reasons. One of the reasons is kind of perfectly obvious, and that is, do you really want the fox to guard the henhouse? I mean, do you really want an employee who is accused of some sort of wrongdoing to be the one to decide what’s relevant and what isn’t, and to collect it or not? Judge’s don’t think that’s such a good idea. But there are other reasons as well. In this case, this wasn’t the situation at all. There was no allegation here of any wrongdoing on the part of an employee self collecting. It was more of an IT error.

The law firm that did this by the way– I won’t name them, but they’re a big firm out of Florida and not my old firm, not Akerman, but another big firm – I know very well that they have very competent e-Discovery counsel. They have specialists that work on e-Discovery. It is quite obvious, however, that their e-Discovery specialists were not consulted. What ended up happening is they gave so little direction to the client and the client’s IT department – they told them, just go out and collect email, and that’s what the client’s IT department did. They collected from the active Exchange server only and because they weren’t specifically asked to look for .Pst files, they didn’t do it. Soo when they made a production, they only found a couple of dozen emails. Then the requesting party said, a couple of dozen emails, that’s ridiculous. We’ve got more than that from you ourselves. That’s always a good proof to show that the other side is not doing it right, when you’ve got emails that they should have produced and they didn’t.

So they filed a motion for sanctions, saying the responding party must have destroyed them, shame on you. Then after the motion for sanctions, and an order, where it looks like Judge Gonzalez is getting ready to do a lot of dastardly things to their case, then suddenly the responding party put renewed effort into it. Obviously they finally brought in somebody who really understands something about e-Discovery, and I don’t mean advanced e-Discovery either – I’d like to think all of my second year law students who have taken e-Discovery introduction know about .Pst files. The lawyer now comes back to the court and says he didn’t know about, never heard of .Pst files. So he didn’t know to tell the IT department to look for them. When on the verge of having their case dismissed, they finally figured it out, at that point that, oops, yeah, maybe there could be .Pst files where there’s more  emails. At that point they found about 10,000 responsive emails, some of which were very hot.

So the producing party comes back and says, no harm done, here we are, we produced them, no big deal, right? But at this point, they requesting party changed their motion for sanctions based upon spoliation into a motion for sanctions based upon “intentionally obstructing the discovery process.” That then brought on extensive briefing and discovery about discovery – always a very expensive proposition. The Florida A&M Properties case, by the way, started in Florida, regular old state court, concerning a $41 million real estate purchase gone bad because of the recession. Then one of the parties filed for bankruptcy, so it got yanked out of Florida state court into bankruptcy court in Manhattan. That becomes an interesting fact later on, as I’ll explain.

So this case got moved to Manhattan, and there the judge looked at what happened, what the plaintiff’s attorneys had done – both the plaintiff’s attorneys in Florida and the plaintiff’s attorneys in New York after it got moved, and he did not find any intentional obstruction with the discovery process and he did not find bad faith. He just basically found negligence. He found that it was negligent not to know and not to search for .Pst files. It was negligent just to turn it over to the client and let George do it. For that reason he did then not enter an adverse inference instruction as the defendant had requested. Everyone seems to agree that adverse inference instruction is the kiss of death – might as well dismiss it – but instead, he said that the sanctions would simply be monetary.

I’ll get to that in a minute, but he did, by the way, reserve a final ruling on the adverse inference motion. He said that he would schedule a separate hearing to evaluate the degree of negligence. I mean, they made a mistake, but how bad a mistake was it? Did it cross over into gross negligence as Judge Scheindlen found in Pension Committee. If it’s gross negligence, well, in that circuit, that alone might be enough for an adverse inference. So there’s still a sword hanging over their head there.

But, all he did at this point is – is he imposed a monetary sanction. This sanction was not only against the client but also personally against the attorney. This was one of these cute things where the judge said we’ll have a later hearing to apportion how much of the sanction amount should fall on the client and how much should fall upon the attorney. Talk about a conflict of interest there for that hearing. I mean it’s an interesting thing to have happen, which I hope never happens to you.

But the one thing that the party moving for sanctions didn’t get, is they wanted to get sanctions against the Florida lawyers who did the same thing. They just delegated to the client’s IT department, didn’t know what a .PST file was, and just allowed a production to happen of a few emails without digging deeper and doing it right. The Manhattan judge, although he had jurisdiction over the Florida lawyers, they appeared in the bankruptcy case too, he decided he was only going to sanction the New York lawyers. He wasn’t going to sanction the lawyers whose conduct occurred while the case was in Florida. The reason is – this is kind of interesting if any of our listeners are in Florida, a little bit of a sigh of relief – he found out the rules were different in Florida, in that you weren’t held clearly by case law to such a high burden of not being able to delegate it. Since there was not any clear case-law in Florida, like there was in New York – with Zubulake and a dozen other cases like it that talk about a lawyers personal responsibility, he didn’t sanction the Miami lawyers. He only sanctioned the New York lawyers and that’s the reason why.

So, bottom line to Florida A&M Properties, you can’t just turn it over to the client. They might screw it up as happened here. Even when you have a very competent client that really knows what they’re doing, you have to have some involvement. You have to be prepared to tell the court that you have satisfied your duties. You’re the one whose feet are being held to the fire. You’re the attorney of record. You’re the one responsible for discovery, not the client whose not an attorney, not even the client’s in-house attorney, who probably doesn’t want to appear of record and be subject to sanctions. So you have to have some involvement in the collection, you can’t just turn it over, even if it is to a saint.

I think I’ve left some time for Brett on the very interesting Quon case again.

More On City of Ontario, Calif. v. Quon

Bret:

Thanks a lot, Ralph. We’re going to talk about a few additional issues with Quon.  …  To me, what I was hoping that the court would do, is issue some type of decision on the reasonable expectation of privacy and what impact a company policy would have on the expectation. Like I mentioned before, we had this Stengart case in New Jersey, where the New Jersey Supreme Court said that at least as it relates to attorney-client privileged communication emails on a personal account, no policy could defeat that privilege. Here the Supreme Court said that the court must proceed with care when considering the whole concept of privacy expectations made on electronic equipment owned by a government employer. So, at present, it is uncertain how workplace norms and treatment of them will evolve. The the court has essentially said that we’re not going to decide. It’s either too early for us to make a decision or we’re just not going to decide to what extent employees have this privacy expectation as it relates to electronic communication systems.

I think though the take away for employers, and anybody really, in light of this case, is to make sure that you do have adequate electronic communication policies that do their best to diminish somebody’s expectation of privacy.  The electronic communication policies should make it very clear that the company will reserve the right to monitor the use of its systems. I would make it clear that this includes use of the system to access the Internet.

I also think employers should have a policy that would prohibit employees from emailing work home. I think a lot of people, if they’re working on a project, they will email a document to their home email address or a personal email address. They’ll pick it up at home, they’ll work on it, email it back. The issue then becomes, at least in terms of preservation and later production, you have potentially relevant documents sitting on an employee’s personal email account. This makes preservation very difficult. You also should tell them that the harassment policies would apply to anything that goes across the electronic communication system.

But ultimately, just make very clear the company’s right and ability to monitor. You want to make it as broad as possible. That may not permit you to get access to privileged communications with counsel – at least in New Jersey, but your goal is to at least diminish any potential invasion of privacy type claims. Ralph, did you – I know last time you had a few comments on the Quon case, is there anything that you wanted to add?

Ralph:

No, I think we’re running out of time. Good job, Brett.

Mary:

Yeah, and I want to – I want to thank both of you for this encore for case-law in the summer. These are cases that everybody is interested in and talking about. It’s just been a delight sharing the platform with you two. Thanks Ralph and thanks Brett.

1 Comment | Lawyers Duties, Metadata, New Rules, Review, Search, Spoliation/Sanctions | Permalink
Posted by Ralph Losey

America’s Got e-Discovery Talent – Part 2

August 15, 2010

Mary Mack:

Thanks Rebecca and I want to thank Ralph and Brett for an encore discussion. Usually when we do case law updates we fit them all into one session. But so much has been happening and our listeners gave us some wonderful feedback about the last time we were with you two gentlemen. So we’re going to dive right in and Ralph, would you be so kind as to explain the picture of the guy with the cell phone.

Ralph Losey:

Why thank you Mary. I would like to invite the listeners today, who obviously don’t have enough to do as they’re listening to us now, but welcome, and we appreciate it, to please tell me who is the gentleman pictured below?

I’ll tell you, he’s a lawyer. But who is the lawyer pictured here? Send us an email if you can identify this character from the past. This is all a prelude to our talking about cases in 2010.

Bray & Gillespie I

The Bray & Gillespie III case was published in January 2010, so it just makes it. But you notice it’s actually number three. It’s the third opinion that’s issued in this case that pertains to e-Discovery. (Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) (Bray I); 2009 WL 2407754 (M.D.Fla. August 3, 2009) (Bray II); 2010 WL 55595 (M.D. Fla. Jan. 5, 2010) (Bray III).) Before I go into the facts and the meaning of Bray & Gillespie III, I wanted to tell you quickly about Bray & Gillespie I and II. That provides the necessary background to understand just how incredible this third decision is. (It’s almost as incredible as that ten year old girl on America’s Got Talent, Jackie Evancho,who sings like an adult opera star. That is spooky! See for yourself.)

I wrote about Bray & Gillespie I in my latest book, it’s Chapter 8. An interesting thing about Chapter 8 is it’s entitled “My Grilling by Mary Mack.” It is a modified transcript of an interview I did before with Mary Mack, where I didn’t have Brett Anders with me for protection. I got even with her grilling interview by later adding what my secret thoughts were at the time. So if you’re wondering what the duel was like between Mary Mack and I, and what I was think, you can check out the book. Anyway, in this prior interview Mary asked me about the Bray & Gillespie case, and I explained it, and included that in the book.

The first Bray & Gillespie opinion was very interesting for a couple of reasons. Number one, the magistrate judge was here in Orlando, right in my home turf, Judge Carla Spaulding. She was told by plaintiff lawyers and defense lawyers two different things as to what went on in their 26(f) meet and greet conference. She had the plaintiff’s counsel say that the defendant – Lexington Insurance Company – that they agreed that they could have a production without metadata. The insurance company lawyers, whom I happen to know, said: no, no, no – that’s not true. We told them we wanted all of the metadata and we were going to want native file production.

So this judge hearing two different versions of what went on, she did something that a lot of judges I would suggest wouldn’t take the time to do, she basically called them on it. She said, okay gentlemen, I’m going to schedule an evidentiary hearing, and we’re going to get to the bottom of what really went on here. That led to an evidentiary hearing where testimony was given by lawyers. Basically the lawyers for the plaintiff pointed their finger at prior lawyers whom they had replaced for the plaintiff and sort of blamed them. Judge Spaulding reacted to that by saying, you know what, let’s have another evidentiary hearing. And guess what? The prior lawyers voluntarily flew down, I think they were from Philadelphia, and they appeared at that evidentiary hearing. So there was a second hearing about what went on in at the 26(f).

The bottom line to all of that is, the judge believed the defendants, the attorneys for the insurance company, and did not believe the attorneys for the plaintiff. She held that there was going to be a requirement that metadata be produced. In the process she went through an analysis of the rules on production. Because she said that even if there wasn’t an agreement, the Rules require production in the original form, which means native, all metadata; or, they require production in a reasonably usable form.

Then she did an interesting, helpful analysis on reasonable usability if you are a requesting party, or responding. She said that clearly the form that was produced by the plaintiff here to the defendant was not reasonably usable. So what was that form that was not reasonably usable? Get this, here’s what they did. They produced 100,000 emails to them in .TIFF form and they produced 100,000 attachments that went with those emails in .TIFF form. But what they didn’t produce was a full load file. They had a full load file, but they stripped it down before production to a very minimal metadata load file. One of the metadata fields that they stripped was the metadata field that tells you which attachment went with which email. So, here you are, you’ve got 100,000 emails and 100,000 attachments, and you’re just supposed to figure out for yourself which went with what? That’s just plain mean!

That’s what the defendant said, and the court agreed, and here’s where the case gets even more interesting. Not only did the court sanction the plaintiff’s attorneys that appeared of record. The court also sanctioned the plaintiff’s attorneys’ law firm, citing case law which is kind of interesting to know about, as to how a law firm has a responsibility and can be sanctioned for the actions of its partners. And, so, that case kind of made history, it got a lot of people’s attention. (Kind of reminds me of the way the Illusionist, Dan Sperry, got Howie Mandel’s attention, with his dental floss through the neck trick shown here. Sharon Osbourne’s reaction to the stunt is probably close the the reaction of defense counsel in reading the orders in this case sanctioning one plaintiff’s counsel after another.)

I know many firms after that instituted rules that required reporting by lit support of activity like that. So if a partner tells the litigation support department in a law firm, go ahead and make the production, but I’ll tell you what, let’s just strip the metadata that will allow them to know what email goes with what attachment. They have made a rule saying that if you’re asked to do this, the lit support person, then you are to go around this partner and go to a top person. Report this, and don’t do it, until you get approval from higher up in management.

Why did firms do that? Because they wanted to protect themselves from the loose cannon partners out there that think it’s all fun and games, that you could just do that and that’s just part of normal hardball discovery. They don’t understand that this is changing evidence, and is against the Rules. They don’t understand that it can result in you’re being sanctioned.

Mary:

So, Ralph, this is new, that I’ve heard that lit support is empowered to go around a partner that has a ridiculous request.

Ralph:

Well, this isn’t all firms, but I know that this was implemented in some firms and frankly it’s a protection for the law firm. I would recommend that all law firms consider doing that. This is a wake-up call for all law firm management – you better get your lawyers under control and impose some discipline out there. Otherwise you may have a lot of explaining to do when the law firm itself gets sanctioned.

Mary:

This is also what happened with the associate on the Qualcomm case, and that’s somebody who has a license to protect. So this is fantastic for the lit support community because I know a lot of them are worried about exactly these issues – partners who don’t understand technology making potentially bad decisions.

Ralph:

I agree. People talk to me and they say, you can’t put this in your blog, so I don’t, but we all know very well that there are lit support people receiving specific instructions like that. They know it’s not right, but they’ve gotta do it. So, yes, if you’re a law firm, you ought to think about it.

By the way, I see we’ve got an email from someone who correctly identified the handsome looking fellow above as Caveman Lawyer from Saturday Night Live. This show aired in the 80’s and you can see he had then state of the art iPhone technology, that’s what cell phones looked like back then. He used to say, “I’m nothing but a simple caveman lawyer,” and I’ll tell you why that’s appropriate when I finally get to Bray & Gillespie III, but I did want to share Bray & Gillespie I first. That is the impact – it did have an impact, as kind of the shot heard round the world, because the law firm that was sanctioned, I’ll tell you this, it’s one of the world’s largest law firms. It was a big time law firm that got sanctioned.

Bray & Gillespie II

Okay, that was Bray & Gillespie I, and believe it or not, that wasn’t the end of it. So the big time law firm gets out of the picture, and some local lawyers in Central Florida take over. You would think that they would clean up the act, but no. Bray & Gillespie II ensued next, which I also wrote about in my book in Chapter 32. Chapter 32 has kind of an interesting title, it’s one of my favorite essays I’ve ever written. It’s called Plato’s Cave – why most lawyers love paper and hate E-Discovery and what this means to the future of legal education. In this chapter I try to get in the heads of my brothers and sister lawyers who are my age that basically grew up on paper. I try to explain to the rest of the world, particularly the younger generation, why it is that senior partners hate e-Discovery and love paper, love their bates stamp, don’t try to take it away from them. I found out. That’s what Bray & Gillespie II is kind of about.

In my chapter Plato’s Cave I explain how the new attorneys that were taking over – they were co-counsel all along – they actually said that the hotel system that kept track of guests when they would check into the hotel could only be found and seen in paper. The plaintiff was a hotel – they were suing for damages caused by three hurricanes that hit Florida one terrible summer. They said, you know what, we keep all of the records of how many guests we have and I know your expert would like to see these records to analyze damages. But the truth is these SQL databases, they really only can be produced in paper.

Plaintiff’s counsel insisted on that, stuck to that party line, said here’s our warehouse full of paper, go look at it. They basically played all kinds of games like that. It really upset Magistrate Spaulding and I think rightfully so. In view of this she recommended that the entire case be thrown out because the defendant, the insurance company, had been prejudiced. It couldn’t get access to the information it needed to defend the case. That was Bray & Gillespie II.

Bray & Gillespie III

Now the stage is finally set for Bray & Gillespie III, the 2010 case, which is the appeal of the Magistrate’s order recommending that all three counts, one count for each hurricane, be dismissed with prejudice as a discovery sanction. By the way, in Bray & Gillespie II, the lawyers and the client are again sanctioned, along with dismissal of the case.  In Bray & Gillespie III, the district court Judge Scriven, who used to be a magistrate judge and really has a good grasp on discovery – she heard representations from the replacement counsel. No surprise that at this point the last lawyers got fired. New counsel comes in. These new guys, I know them, they are really- they’re pretty good. I hope they’ll excuse me for my caveman lawyer reference because caveman lawyer was  one of my comic heroes as a young man. Obviously things in the modern world like a SQL database did not “frighten and confuse ” them like their predecessor attorneys. (Remember these famous lines from SNL?)

Anyway, the replacement counsel basically thought to call the software vendor. I mean genius, right? They called the software vendor of the software program with SQL database that the hotel used. He did it, by the way, with a tech at his side – that’s a good tip right there everybody. Use the team approach. If you’re a lawyer and you don’t know that much about SQL databases, and only Mary Mack here knows a lot about SQL databases, I know enough to know that I don’t like them, have an expert on the phone with you.

It only took one phone call to find out that, duh, of course you can get the electronic records from out of the SQL database. Duh, of course you can make a native production as they wanted, so the damage experts could deal with it. So, new plaintiff’s counsel says, okay, look, we’ve corrected the problem. We’re ready to make a production now. I’m a hero, one phone call, I saved the day. You know, no harm, we’re ready to produce.

At this point, the judge says, well, it’s a little late now. Your client should have made that call long ago. Basically they were hung by their own petard at this point. The judge said, look, it was so easy, one phone call, why didn’t the plaintiff do this three years ago? Why didn’t they do it after the last motion to compel? The judge said no, don’t bother producing it, it’s too late now. We’re going forward with the trial. We aren’t going to strike all three counts, but we are going to strike one of the counts and plus plaintiff, you’re going to pay a $70,000 fee sanction.

I hold up the Bray & Gillespie saga of three cases as the poster child for what happens when you don’t cooperate. This is what happens. You get part of your case thrown out. You get yourself sanctioned. In the end, you haven’t done your client any good at all. This is what happens when you think that you should be fighting about e-Discovery and dumb things like metadata attachments. This is what happens when you only pretend like you understand and don’t bring in a team and an expert to help you figure out stuff that you don’t understand like SQL databases. (Speaking of poster childs, check out the YouTube video that got Jackie Evancho onto the show. She is the favorite to win this year’s America’s Got Talent, just like Bray & Gillespie is to win America’s Got e-Discovery Talent.)

Mary:

Yeah, and to underscore what you say about databases, Ralph, I would say that anytime you’ve got database information, you need an IT person. Because the nature of a database is that it’s so flexible, that you really have to get into it to see how things are rolled up, what things relate to other things, how things get deleted, all of that. So, point well taken on those databases.

Ralph:

Okay, I think we’re done with Bray & Gillespie. Let’s move on.

Crispen and Social Media As Evidence

Mary:

Now we’re moving into the Crispin case. Crispin v. Christian Audigier Inc., 2010 U.S. Dist. LEXIS 52832 (C.D. Cal. May 26, 2010). This is a case where it’s about a license and Crispin was said to have given an oral license. What the other side wanted to do was to look at his Facebook and emails to create a contract. So, this is a case very much in the news, at least in terms of subject matter around Facebook and MySpace and other social media as to what is public, what is private, what can be subpoenaed, and what cannot. At the end, Brett will be talking a little bit more about Quon and the difference between what is stored and what’s transmitted. It certainly makes a big difference, and then the other thing pertains to user privacy settings. (For comment on the interesting Crispin case see a short Harvard Law student article.)

There’s a lot of talk about attorneys using these social media sites to look for witnesses, impeachment, and that type of thing. Ralph and Brett, you’re in the employment area of law, how do you think that these Facebook cases and social media cases are going to affect your practice and the practical things that you advise your client’s to do?

Brett Anders:

I have a few real life examples. One thing I can say is that the social media sites, at least from a litigation perspective, they’re pure gold in terms of what you find. I’ve used them frequently in cases, especially harassment cases – sex harassment cases, where the information you see on the Facebook page is completely different than the allegation. For example, somebody – we had a case where somebody complained that as a result of the harassing conduct they were very depressed and they couldn’t go on vacations. Yet they had all of their vacation photos – photos up on their Facebook page. Actually in that situation it was a Myspace page that was completely public.

You mentioned witnesses before. It’s also a great way to find potential witnesses to corroborate testimony. They usually have a lot of their friends there. Their friends will know personal information about them so, it’s a good tool there. (Speaking of using FaceBook to find friends, did you see how America’s Got Talent has begun using YouTube contests to find talent? I’m thinking maybe the next new talent show to grace the airways just might be YouTube itself. Who needs these middlemen judges anyway?)

I also get a lot of calls from clients, because in addition to litigation, I also do a lot of day to day HR counseling. You’d be amazed at the number of termination decisions that are made based on information found on Facebook. One reoccurring question I get asked now – especially now that it’s summer and the weather is a little bit nicer – is somebody calls in sick and they maybe forget that they friended a few people at work on Facebook. Then their post or their status update for the day is going to the beach. So we’ve had a few calls about whether an employer who saw this on their Facebook page, or one of their friends saw it and reported it, can we take action based on it. We’re just seeing more and more of how what a person puts on their Facebook or their Myspace page has huge implications, either in work or in a lawsuit.

From a practical standpoint, certainly in litigation, the user can change their privacy settings. There’s going to be some stumbling over shoelaces around what the settings were at the time the information was pulled off of Facebook. Was it public or was it private?

I know of a situation where the plaintiff had a public FaceBook page with good information, relevant information to the lawsuit. Those pages were printed up and produced for discovery. The defendant then received a motion to amend the complaint to add a claim for violation of the Stored Communications Act. The defense responded that there wasn’t any type of unlawful interception or accessing of a stored communication or stored data – it was public.  At a hearing the defense asked the court, ask the judge’s clerk to open up the page and view for themselves the public nature. As it turned out, the plaintiff had cancelled their Facebook account three days before the hearing and it no longer existed. The defense then argued that the plaintiff had spoliated evidence, they destroyed evidence. The plaintiff tried to argue that he had to take it down to protect his privacy. The court allowed the claim to go forward and didn’t address this spoliation issue at that time, but said it would be considered later.

The defense then subpoenaed Facebook to find out what the privacy settings were for that account at the time and when various changes may have been made. Facebook responded by saying they do not log changes to privacy settings – that’s just not something that they keep track of. So one problem is you’re going to have people who after the fact change their settings and you will have to prove that something was public or private at a given point in time. We’re really going to need the courts to start giving some rules or guidance as to what is private and what’s not and what the tests are.

Ralph:

I think an exciting area in e-Discovery is employment law. It’s one of the reasons I went to Jackson Lewis. I could have more fun cases like you get in employment law. It’s a hot issue and I spend a lot of time thinking about ways to take advantage of online information. We are developing protocols – I don’t want to get into all of that, a little bit of trade secret stuff there – but let me just tell you, if there’s any law students listening out there or people looking for a job, become a better Googler, it will help. That is a good skill to find all of this information.

Mary:

No kidding, and I think that one of the areas that’s just ripe, and I hope this isn’t one of your trade secrets, Ralph, but the litigation hold notices that I’ve seen don’t really mention social media and things like canceling an account or changing privacy settings and things of that nature. So that’s certainly an area for folks to consider.

I wanted to throw this out to you, Ralph and Brett, about waivers of privilege or trade secret by making things readily available on social medias. How is social media affecting those two areas?

For the answer to this and other questions, and to continue to hear the judges and their cases judged, come back next week for the conclusion to America’s Got e-Discovery Talent, Part Three.

1 Comment | Lawyers Duties, Metadata, New Rules, Review, Search, Spoliation/Sanctions, Technology | Permalink
Posted by Ralph Losey

America’s Got e-Discovery Talent: Judging the Hot Cases of 2010

August 8, 2010

I sat on a three-lawyer panel last month to judge the contestants for America’s greatest e-discovery cases of 2010. Yes, we’ve turned the tables and are judging the judges and their opinions. (Actually, this was a FIOS interview devoted to current case-law, but I’ve been watching too many TV talent shows.) Joining me on the panel was one of my best Jackson Lewis partners in e-discovery, Brett Anders. The third judge was FIOS‘ own tech-law guru, Mary Mack, author of the Sound Evidence blog. We had such a good time judging e-discovery talent this year that we only got half-way through the list of  contestants. FIOS was forced to bring us back for another show to finish the judging. This blog represents the shortened, edited version of Americas Got e-Discovery Talent, Part One. Go here for the full Webinar with all its audio glory. It’s free, but you have to register.

Here is the tail end of the introduction of the three-judge panel:

Both Ralph and Brett are working in the employment area. That’s where the rubber meets the road for many of these 2010 cases. It’s where we see the emerging e-discovery trends that we are trying to get our legal-arms around, in the social networking space and those types of things. So what we’re gonna start out with is the first case that came down from the Supreme Court, Quon.

The presentation begins with Brett Anders, and from here on it’s all transcript of webinar highlights (except for my occasional added comments in parenthesis).

Brett Anders on City of Ontario, Calif. v. Quon,

Brett:

Thank you Mary. The Quon case is a much awaited decision from the Supreme Court on the issue of the privacy of text messages using an employer-provided text messaging system. The decision came down less than a month ago on June 17, 2010. In short, this case involved Jeffrey Quon, a Police Sergeant whose employer had provided him with a text messaging system. He sued his employer after he was disciplined when it was found out that he was sending hundreds of personal text messages of a personal nature to both his spouse and girlfriend. (Yikes. Sexting his wife and girl friend at the same time? That defies gravity, which in turn reminds me of this great America’s Got Talent Act by a bunch of frat boys.)

The City had a written electronic communications policy that restricted an employee’s use of the City owned computers, technology, and resources, such as e-mail.  The policy said that employees had no expectation of privacy in their network activity and that the City reserved the right to monitor employees’ on-line activity. It also prohibited using the City’s systems for inappropriate, obscene, or any type of harassing communication. Although the policy itself didn’t specifically apply to the text messaging systems, the City had verbally advised its employees that it would, and later followed that up with a memo.

The City had a contract with Arch Wireless. Arch was the company that actually provided the text messaging service and the City was billed on a character-count basis. They had a monthly plan that provided a certain character limit.  If the limit was exceeded, the City incurred some additional charges.  The employees were generally told if you go over your limit, we’ll tell you how much you owe us and we’re not going to audit or review your messages.

Not surprisingly, Quon went over his limit and he went over his limit repeatedly. He paid each time for that overage. Ultimately his supervisor got tired of basically being a bill collector and decided to audit the messages get a sense of whether the overages were a result of the company buying too small a plan for what the people needed for their work, or whether it was a result of excessive personal usage. The audit was done for just a few month period and it was limited to those text messages that were sent during work hours. So, they had redacted out messages that were sent off work hours. They found that Quon was sending an excessive amount of communications, not only excessive on a personal nature, but inappropriate in the content. You know, there was special content. (Speaking of special content, I can’t help but think of another of the acts that made it to the top 48 of America’s Got Talent, those crazy talented belly dancers.)

(Back to Brett.) Now, after being disciplined, Quon filed an action in the Central District of California. He essentially alleged that his constitutional rights were violated, the right under the Fourth Amendment of privacy. He also brought a claim under the Stored Communications Act, which essentially protects electronically stored communications.

The District Court, the lower court, found in favor of Arch, the wireless provider, granted its Motion for Summary Judgment. But it denied the City’s motion on the Fourth Amendment claim and a trial was conducted. The jury returned a verdict for the City finding that it acted without violating any of Quon’s constitutional rights.

On appeal the Ninth Circuit reversed.  It found that the search of Quon’s pager was an unreasonable search. It suggested that there were numerous other ways the City could have done the search without violating Quon’s privacy. This included giving Quon a warning or asking Quon himself to review his messages and redact out those which were personal.

The court also held, the Ninth Circuit, that Arch Wireless violated the Stored Communications Act by disclosing those messages to the City.  Both the City and Arch filed Petitions for the Supreme Court to review. The City’s Petition was granted but Arch Wireless’s Petition was denied. So at least as of now, the Ninth Circuit’s finding as against Arch still stands.

As it relates to the City, the Supreme Court found that the City’s search of Quon’s text messages did not violate the Fourth Amendment. It found that the search was reasonable and that it had a legitimate work purpose to determine whether the plan that the City bought for its employees was of the right size; to determine if it was large enough for them to do their jobs. Second, it found that the search was not excessive in its scope. The court found it important that the review was limited to a two month period and that it was also limited to those messages that were sent during work hours.

What is interesting about the case is one of the issues that I think a lot of people were waiting to hear about – the expectation of privacy. We’re gonna talk about a New Jersey case, Stengart, later that deals with the expectation of privacy and communications using the work systems. Here the court assumed that there was a reasonable expectation of privacy, privacy in these communications.

The take away for employers in Quon is that there was a lot of cautionary language in the court’s decision about the scope. The court held that it must proceed with care when considering the whole concept of privacy expectations made out of electronic equipment, that we’re going to have to wait and see how this technology evolves.

I think that what can be taken away from this case is that it’s very important for employers to have policies in place that are as broad as possible and give employees as much notice as possible as to what level of monitoring will take place. The purpose of the policy is really to diminish the expectation of privacy in these types of devices. But I think even more important than that, as we’ve seen in this case, the managers have to enforce the policy. Here the issue was the fact that although the City had the policy, the manager is telling employees: well as long as you, you pay for the overage, we’re not going to review them.

It’s really important for there to be consistency between what the policy says the company will do and what actually happens.  I think it’s important for the City or companies to actually audit and make sure that their policies are being complied with.

So, I know Ralph, I think you had said you wanted to comment on the dissent in this case and also the failure of the court or the decision by the court not to accept Arch’s Petition.

Quon, Arch Wireless, and How To Get Social Media

Ralph:

Yes, I did. Thanks Brett.

I think it’s important to underscore the fact that Arch Wireless also petitioned the Supreme Court for certiorari and the petition was denied. They had asked for review of the decision against them enforcing the Stored Communications Act. They asked the Supreme Court to at least take a look at that. I think it’s important to note that the Supreme Court refused. So, that stands as the law in the Ninth Circuit, and I think this is now a couple of Circuits have looked at this, and found the same way that the subscriber has to be the one to consent to the release of that on-line stored communication or on-line information.

Even though the employer here got cert and basically got a reversal and got off, if you will, the poor little wireless company did not. The judgment stands against them. So as a practical matter, the employer isn’t gonna be able to do this again. They’re not gonna be able to say, hey come on, send us the text messages. The wireless company in the future is gonna say, heck no, we can’t. That’s a violation. You’re gonna have to get it from the employee.

And that’s an important practice pointer to come up with and I know we’re going go into this later on, but just the whole fact that you can’t just be subpoenaing Facebook and expect that they’re gonna say Oh sure, here’s all their information. So that’s an important thing that comes out what the Supreme Court did not say.

Mary:

Ralph and Brett, do you think this applies as well to things like G-mail and Yahoo mail, the third-party e-mail? Do you subpoena to get those records.

Ralph:

I think they’ve all taken the position, and I don’t fault them for this, that they want the consent of the individual subscribers. They will not honor a subpoena which is just a lawyer signing his name under a clerk issued process. They say that is not good enough and never mind whatever case law you may have in your state that says a subpoena is equivalent to a court order, they’re not buying that in California. They’ve got the case law to support this. They want an actual court order. Basically they want consent. because they don’t want to be sued like Arch Wireless was. So unless you’re the government, and you’ve got some sort of terrorist investigation or something else, you’re gonna have to go through the court and get a proper oder. You’re not gonna be able to just sign your name to a subpoena and expect Facebook to say, oh yea, here’s all their private messages that you can’t see that they’ve hidden.  Facebook and all the others are uniformly taking that position now.

Brett:

Yea, I agree with Ralph and I think the two approaches that you’re gonna see at least in litigation, is either directly getting an order from the court authorizing the release or filing a motion to compel the Plaintiff to sign an authorization.

Mary:

So do you two see a distinction between e-mail hosted at the employer’s site, on the employer’s equipment by, run by the employers IT department and then third party e-mail, perhaps in the cloud or hosted elsewhere? By the employer?

Ralph:

Oh yes. I mean there’s a huge distinction. Definitely the Stored Communications Act applies and nobody’s interpreting that to include an employer’s own equipment. So that’s just frivolous, So there’s no question about the distinction there. Although I guess there’s no such thing as a frivolous tech argument when you have our Supreme Court saying whoa, this is too complicated for us. We don’t want to really grapple with this, which is the other point I wanted to make about Quon. I found myself agreeing with Judge Scalia, who chastised the majority for this in his dissenting opinion. He said the majority opinion really doesn’t say much. It doesn’t give us much guidance and puts a lot of burden back on the employers, back on the district court judges, state court judges, the magistrates.

We’re all gonna be having to figure this out on a case by case basis. We’re not gonna be getting any kind of broad policy guideline from our head court, from the Supreme Court, even though that’s their job basically . That is what Judge Scalia chided them for with that famous line, where he quotes Bob Dylan and says: “The times they are a changing. It’s a feeble excuse for disregard of duty.” So he was chastising the majority for not really grappling with the privacy issues here because the majority said, gee, this is such a rapidly changing area. Obviously from the oral argument, there apparently isn’t a single Supreme Court Justice that really understands technology today and, for some reason, they’re not being properly briefed. The attorneys that argued it before them in oral argument were also shockingly remiss in their ability to provide cogent answers. (To our supreme court all technology and social media talk seems to be just so much poppycock, which of course reminds me of Prince Poppycock on America’s Got Talent).

So the bottom line is, it’s gonna be a long time a coming before we have advice and guidance from the Appellate Courts. It’s up to us individual practitioners to figure it out. It is up to us to try and make sense to the District Court Judges that are going to be working on this for a long time.

So that’s all I had on that. Do you want to move on?

Pension Committee: Losey’s Favorite

Mary:

Pension Committee? Well, Ralph I want to give you kudos because you broke the news on the amended opinion.

Ralph:

Yes. And I’m a person that can’t stand it when the t.v. show says breaking news. Apparently I was the first person to publically announce her second amendment to the opinion. Let’s just say I have my ways, and people send me things. This  opinion amendment was published May 28, 2010, and I released it that day. I actually got the signed opinion. That’s an actual photograph of Judge Scheindlin’s signature below. It’s not a long opinion. It’s only a couple of sentences. Here it is in its entirety:

The Amended Opinion and Order filed January 15, 2010 is hereby corrected as follows:

At page 10, lines 7-10 replace <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.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.>.

Judge Shira Scheindlin did something which, to my knowledge, has never been done before. Weeks after an opinion was issued, she sua sponte made a correction to it in response to being asked a question at a CLE event. Now who’s ever heard of a judge doing that?  I put this question to my students and all of the students were uniformly impressed by her willingness to do that, showing that she really seems to care about keeping the law straight. She has her ego under control and she’s willing to say, okay, I made a mistake here and correct it.

Insofar as to the mistake she was correcting, there were two things really. First of all, in her initial opinion, she talked about all employees, that the failure to obtain records from all employees, as opposed to key players, likely constitutes negligence. But she changed that, got rid of all employees, and said all those employees who have any involvement with the issues raised in the litigation. That was in direct response to a question asked at a CLE event where a person asked why did you say all employees. This is causing us problems. I think she never intended it to mean all employees.

I believe she always intended it to mean her correction, it’s the only way to make sense of it. She must have always intended it to mean all employees that have information, because obviously it can’t go around collecting everyone’s records even if they don’t have anything to do with the case. You know, that’s kind of absurd. So she corrected that.

The other thing is she corrected, which really wasn’t asked of her at this same CLE event, she changed the negligence reference and she made it read could constitute negligence. And so she changed that word to could, instead of the way it was, likely constitutes negligence. I think that was a little bit of back peddling when she reread the sentence. She said, well I don’t really mean could because it depends on all of the circumstances.

So she’s clarified the opinion a little bit and she’s made history here in this Pension Committee opinion now by changing it for the second time. She also made history in this opinion because I think it’s the first opinion that’s ever had written on the top of it that it’s a sequel to a another opinion, Zubulake. I mean this is one for the textbooks literally.

I have all of my students studying it and if there’s anybody that hasn’t already read at least the first thirty pages of Pension Committee, you definitely should do it. It’s going to be cited at you time and time again, and, the funny thing is, it’s gonna be cited by both sides on any issue.

Mary:

That’s a good point. I too thought it was extraordinary Ralph that Judge Scheindlin would amend her opinion. The first amendment she did was because it was being interpreted that you had to keep all the backup tapes. So she changed that to read you only have to save backup tapes when they are the only source of evidence. So that reduces costs. Then then this is another amendment that is sensitive to the costs issue.  I don’t thing we’ve seen the judges be sensitive to cost issues.

Ralph:

That’s right. I was glad to see this amendment. I don’t think we’ll likely see a third amendment, but she’s already made history and I for one am grateful about that.

Wilson v. Thorn Energy LLC

Mary:

Well she certainly sets the bar high because if we move to Wilson v. Thorn, 2010 WL 1712236 (S.D.N.Y., March 15, 2010) involving a flash drive that was set aside. The flash drive went bad and using Pension Committee the judge imposed sanctions for failure to preserve. I want to know what you guys think about this, given the state of current practice in most companies, just taking something and putting it on the shelf and preserving it and not making a copy of it, holding that that violated the duty to preserve. Do you think that standard is too high for current practice or do you think it’s the right standard?

Ralph:

No, I think that standard and that interpretation of Thorn is a mistake. I think you should be allowed to take something and put it aside and call that reasonable preservation. I don’t think you should have to make two copies, which in effect is what you’re saying, if you impose that standard.

Mary:

And I think it’s important to note that this particular decision was written before the amended opinion, which kind of backs off the negligence standard as well.

Ralph:

No, I mean if for instance you have 100 computers, lets say that you need to preserve the hard drive, I think it should be fine just to take those 100 hard drives and put them aside. I don’t think you have to also make a forensic copy of those 100 hard drives. I mean, then you have two copies. I don’t think you have to go to that extreme in view of the cost factor involved and just, what are the odds, that a drive is going to go bad just sitting on a shelf.

Mary:

But maybe after five or ten years, certainly. I know, I’m asking you guys as specialists in the employment area, one of our community’s big concerns is what do you do with departing employees when you’re under legal hold. Many companies do have that standard where they will put the machine or the hard drive aside for a period of time. Would you based on just this one opinion say lets revisit that protocol?

Ralph:

It’s all so fact based Mary. We can’t give a blanket answer on that. You need to understand the facts of your particular case and always remember the golden principle of federal-civil procedure which is Rule 26(b)(2)(c) in proportionality. That’s the king. Rimkus made that point and that focus on proportionality.

Mt. Hawley Ins. Co. v.  Felman Production, Inc.

Mary:

Let’s go then and move to Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010).

Ralph:

I wrote a blog on this, where I used the theme of that great Italian western, The Good, the Bad and the Ugly. I think first of all, a remarkable thing is, it’s an e-discovery case with some sophistication coming out of the State of West Virginia. I didn’t even know that they had e-discovery there and so that just goes to show, I don’t care where you are in the country, you could get hit with a dangerous e-discovery opinion or case. There is no safe jurisdiction anywhere, except maybe San Diego, but that’s another story. (Mary chuckles knowingly at my reference to Qualcomm. Speaking of ugly, I can’t help but think of another act that never should have made it to the top 48.)

Anyway, you have Mt. Hawley, and the good thing is, it does cite and give proper recognition to Victor Stanley v. Creative Pipe and it cites to Judge Grimm, who is a terrific Magistrate. But, aside from that, most of the case is more like in the Bad and the Ugly parts. I assume this will probably get reversed by the District Court Judge reviewing the Magistrate’s order because there’s some things with this case that give me, and a lot of other commentators, many reasons to be concerned.

This is a situation where the judge found waiver of the attorney-client privilege based upon a negligent review. And, okay that’s Victor Stanley v. Creative Pipe, we all know that. On the other hand, this is post Evidence Rule 502, and we thought this was going to be corrected under the Evidence Rule. Here it was not and the court looked at what a law firm did representing the Plaintiff.

This was a very sophisticated national law firm whose attorneys certainly know what they are doing.  It is astonishing to me that a judge could say their efforts were not reasonable. There’s a long list of things they did to review and try to do e-discovery right. But one mistake happened and the mistake wasn’t even an attorney mistake, it was a mistake in software, in the indexing of a database, one of several used. There were millions of files reviewed here. One of the review databases got corrupted.

Now, Mary, you’ve been in the computer biz as long as anybody.  You know that sometimes mistakes happen, right? (Speaking of mistakes, I cannot believe that America did not vote these incredibly talented dancers into the semi-finals? What is wrong with you America?)

Mary:

Exactly.

Ralph:

Well, so a mistake happened. And they were able to show it was a computer error. They gave testimony. The software company gave an affidavit. They said, okay, there’s a mistake here. We’re not sure why exactly, but they didn’t do anything wrong. It’s just that the search didn’t catch this e-mail because the indexing was corrupted. So the search should have caught it, but it didn’t.

The judge basically did not accept that. Instead what I think happened, and I think most people agree, is that it was a case of bad facts making bad law. In that one e-mail that they didn’t uncover, that they should have found and screened out, had the index not been corrupted, that one e-mail was a heck of a smoking gun.

The first thing I want to mention about the bad law here is ABA Model Rule 4.4(b), which most states in the country have adopted some version of, but apparently not the good state of West Virginia. (This Rules of ethics says: “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”)

The Magistrate in Mt. Hawley Insurance Company v. Felman Production looked at the argument that this rule was broken, and said nope, that won’t apply here, because West Virginia didn’t adopt this ethics rule. So what the Defendant insurance company did here is when they saw this e-mail, it was so hot, that they did not notify the producing party, Felman Production.  The insurance company didn’t tell the Plaintiff. Instead, what they did is they attached it to a motion and they filed i. They made it a public record by filing it with the court, not under seal. Do you know why did they did that? They claimed the crime-fraud exception applied and boy they had a pretty strong argument on that too.

That’s why they were bold enough to do that. The basic defense the Plaintiff had to that argument is, well, okay, this e-mail shows we were considering a fraud on the court, but it doesn’t show that we actually did the fraud. We were just seeking advice about whether it would be okay to manufacture this kind of evidence or not.  It was the power of these bad facts that made this bad law.

Even though the judge here did not decide that the crime-fraud exception applied, she did allow the heat of this e-mail to impact the her legal analysis.  She wanted to look at the other 250 e-mails that this attorney apparently had with the Plaintiff, all pre-suit, apparently talking about fabrication of evidence.

That’s how the ABA Model Rule went out the window and caused the Plaintiff’s firm to learn for the first time that they screwed up their review in reading a motion. They learned they had produced not only a privileged e-mail, but they had produced what they must have known was a horrible and potentially damaging e-mail. And then later they discovered it happened because of a failure of software. (Wonder what kind of mea culpas that software vendor offered. Indemnity anyone?)

The bad law that really gets me in this is that the judge doesn’t do her metrics right.  She finds that there were several hundred privileged e-mails produced and then she compares that to the Victor Stanley v. Creative Pipe case. She says there’s more e-mails that were produced accidentally here in Felman than there were in Victor Stanley. Therefore, since Judge Grimm found that there was negligence in Victor Stanley, I should find it’s negligence too in Felman. Well, what’s wrong with that logic? The mistake is that it is not the number that’s produced accidentally that counts, it’s the percentage. The actual percentage out of the total production here, when you’re talking millions of e-mails, the production mistake of a couple hundred was far lower proportion. It was a very, very small fraction, you can get the details in my blog. I think it’s something like .0004%. I mean it’s a very small mistake.

You shouldn’t be looking at the total number, you should be looking at the percentage to determine how good your review was. Because the reality is, no matter how good you are, or how hard you try, if there is a complicated large production, mistakes will be made and that’s just not me saying it, that’s Judge Scheindlin saying the exact same thing in Pension Committee.  Anybody that has experience in e-discovery in large-scale production knows that perfection is impossible. Yet this unfortunate law firm that represented the Plaintiff here, they were held to a standard of perfection. Then based upon the fact that the numbers were bad, they were found to have been negligent in their review. As a penalty, they lost the attorney-client privilege and other sanctions are going to be entered for their allegedly negligent action here.

Mary:

So, Ralph, how important do you think it is for providers like us to give assurances of quality control and like, full life cycle development of software quality assurance and things like that, that level of diligence on the tools that are being used?

Ralph:

It is very important. (But will any vendor offer indemnity?) I mean, this was a major vendor too. It wasn’t just some small local West Virginia outfit. It was a national operation.

The thing that the judge focused on that they didn’t do, really the one thing that she found they didn’t do that Victor Stanley talked about you should do, and in fact of course, I agree with Victor Stanley and Judge Grimm on that, is you should have some random sampling. That’s the main thing they didn’t do here is random sampling. I’ve long been arguing that every vendor should have a random sample button in their software. So she focused in on that, the Magistrate, but as I point out in my critique, in this particular case, the error was so so small that a statistically random sample probably would not have caught it. It would have taken good luck to catch.

A good friend of both of ours, Craig Ball, critiques the plaintiff’s law firm and says they should have re-searched it. They should have searched it again and not just relied upon that one search. I don’t want to go that far. That creates a heck of a burden. On the other hand, if you know that there’s this one terrible smoking gun e-mail, why don’t you take some additional steps to make sure that don’t produce it?

Maybe there should be a final scan of the DVDs or the portable hard drives that you are about to make production on? That’s something I like to do, that apparently was not done here. That might have caught it. But it comes back to what I call the guiding principle again, proportionality.  Do the numbers involved really justify doing a second search, or does the importance of the documents involved justify it? I imagine now with 20/20 hindsight where everybody’s perfect, they would say yea, we should have searched the production CDs one last time before they went out. Would I do that in a zillion dollar case where I knew there was one terrible e-mail? I think now I sure would. That’s kind of the lesson here: we’re all going to have to continue to be paranoid.

Stengart v. Loving Care Agency, Inc.

Mary:

Well good. Lets move into Stengart because we promised we would talk about that. Brett, that’s you I believe.

Brett:

Yep, that’s mine. This decision by the New Jersey Supreme Court is causing a lot of consternation among attorneys.  The upshot here was that the attorneys involved were found to have violated the Rules of Professional Conduct.

Stengart was an employee who worked for the Loving Care Agency. She was given a computer to do her job. The company had an electronic communications policy where the company specifically reserved the right to review electronic communications and advised employees that anything on the company’s computer would be the company’s property. Now this employee resigned and filed a lawsuit alleging constructive discharge and a host of other claims. As part of the defense, the company, their counsel, imaged the computer and an associate started reviewing the computer to see if there was anything of value to the case on there. In going through the temporary internet files folder, the associate found screen shots of e-mails that the employee sent to her attorney.

She used this computer to access the Internet, but it was unclear whether she accessed the Internet through the work Internet connection or her home or somewhere else. But she used her password protected Yahoo account to communicate with her attorney. A copy of those emails resided on her computer.

The defense firm, which is a very well-respected, well-regarded firm in New Jersey, they reviewed the messages and came to the conclusion that the messages were not privileged. The analysis was that because the company had a policy that told employees they would monitor, and because the policy said anything on the system or on the computer is the company’s property, that either one: the privilege never attached in the first place because, the policy was if the employer was looking over the employee’s shoulder every time they did anything with the computer; or two, the privileged had been waved.

Once these e-mails were eventually turned over in discovery, which was a few months after they were located, the Plaintiff’s counsel filed an Order to Show Cause seeking the return of the e-mails. The trial court denied the motion and the appellate division reversed. The appellate division found that the employee did have a reasonable expectation of privacy. The one line that kept reappearing in the appellate division decision was that a unilateral employer policy is not sufficient to override the attorney-client privilege.

The New Jersey Supreme Court issued its decision a few months ago and the upshot of the decision was that the e-mails were privileged and that the privilege did attach and was not waived. The bulk of the opinion focused on the policy itself. There was an issue over whether or not the policy: one, was disseminated to this employee, there were multiple versions of the policy; or, two, whether it even applied to her. The court said look, assuming that the most expansive policy that’s been produced in discovery applied to this employee and that she it applied to her, still that policy was silent as to other e-mail accounts. The policy never referenced personal accounts. Another important issue was that the policy provided for limited personal use, and the policy never said whether during those times that an employee is using a computer for personal use, whether there would be monitoring.

What was interesting was that the court then said that a zero tolerant policy related to personal usage could be unwelcome and unworkable in today’s dynamic and mobile workforce. Now that line to me was very important because the court did not specifically prohibit it. There are some attorneys in New Jersey, particularly those who primarily do Plaintiff’s side work, who will argue that the intent of that type of language was to signal that a no personal use policy would not be permissible under New Jersey law.

The court seemed to be saying during most of the opinion that this is a policy driven issue, that if the company had a better policy, then possibly the result would have been different. This could be corrected through a more clearly written policy.  But the court debunked that theory later in the opinion. It wrote that even a clearly written policy that banned all personal use, and provided unambiguous notice that all communications, even personal password protected e-mails with counsel could be reviewed, the court would not permit the employer to delve into these personal e-mail messages with the attorney on a personal account.

The court found that in this situation the employee took reasonable steps to protect her e-mail. She used a private e-mail account that was password protected. The court also made note of the fact that her password was not saved anywhere on the computer. The court also focused on the fact that the e-mails in question did not relate to any illegal or inappropriate conduct. I think if it had. then the court might have said that would have fallen within the employer’s purview to search to make sure that it’s systems weren’t being used for an illegal purpose. (Speaking of reasonable steps and falling, here is the video of Ascendance, also pictured above.)

To me, though, as a practicing attorney, the bigger issue was the fact that the court upheld the finding that the attorneys violated the Rules of Professional Conduct by reviewing those messages. I can see why the attorneys made the decision that they did. There was a policy and they believed that under this policy there was no expectation or privacy, therefore no privilege. Well, now it turns out that their decision was wrong and incorrect, and now there’s going to be a rehearing over what level of sanctions are appropriate.

One question that I received a lot after the New Jersey Supreme Court decision came down was, should employers modify their electronic communication policies. Because after the Appellate division decision many employers started beefing up their electronic communication policies to make them broader, to make it clearer that the right to monitor would encompass anything that’s done on the computer, whether it’s on the Internet, on a personal e-mail account. The answer in my view is that the policies should not be dialed back in any way.

Although a broad policy, at least under Stengart, will not give you access to an employee’s attorney-client communications on their personal account, it still is helpful and beneficial to protect against invasion of privacy claim. I think the big question in New Jersey is what if this employee had used her company provided account. Would the decision be any different? One comment or line from the case was, the court did say that, you know, employers are still free to control the use of its equipment and property. In a situation like this, an employer could certainly discipline an employee for violating a company policy by using it for excessive personal use, but that they had no right and no business reviewing the privileged e-mails.

If the communications were with the company provided e-mail account, it’s a much stronger argument for the employer to say that there’s no reasonable expectation of privacy. That’s where I think the next line of cases is going to come up where somebody uses the e-mail, the company provided e-mail account to communicate with their attorney. How is the court going to view the reasonable expectation of privacy in those circumstances?

There are several other cases in other jurisdictions which address this and the case law is really split.  (Speaking of splits, have you seen the winners of this year’s Britains Got Talent?)

The cases go both ways as to whether or not a policy can negate an expectation of privacy. But certainly Stengart is really changing how attorneys act, causing them to look a lot more closely on how they practice when they come across arguably or possible privileged documents and communications.

Ralph:

I just want to make one brief comment on Stengart, and that is that’s only the New Jersey Supreme Court speaking. In other courts we may get different results. As New Jersey goes, maybe the rest of the country will go too, but for most of us, we have no guidance or contra guidance. I know of many contra cases where the courts have upheld allowing attorney-client privileged employee emails to be looked at by the employer when they are located in the Internet cache. The same facts, different results.

Mary:

I want to thank Ralph and Brett and it’s no surprise that we weren’t able to get through all this many cases and I look forward to part II and III.

3 Comments | Lawyers Duties, Metadata, New Rules, Search, Spoliation/Sanctions | Permalink
Posted by Ralph Losey

Survey of 103 e-Discovery Cases in the First Half of 2010, the “Campbell Soup” case, and the Wisdom of Andy Warhol

July 18, 2010

A new survey on 103 e-discovery cases from the first half of 2010 shows that sanctions are up, along with motions to compel. It also shows that judges are fed up with hide-the-ball aggressive tactics, and continue to urge attorneys to learn how to cooperate. Cooperation is an important trend, but it requires hard work to make it happen. In the words of Andy Warhol: “They always say time changes things, but you actually have to change them yourself.”

The Law Firm Behind the Survey

This survey was created by Gibson Dunn, an 1,000 plus attorney firm with offices around the world. Gibson Dunn started a practice group earlier this year that they call Electronic Discovery and Information Law. A quick review of their website shows that none of the four partners who chair the firm’s group are full-time e-discovery lawyers. They are instead accomplished trial lawyers in various fields. But the Vice-Chair of the group, an attorney promoted to an Of Counsel position because of her work in this field, Farrah Pepper, is a full-time professional in electronic discovery. The firm’s press release explains that she was the driving force behind the formation of this new practice group. As Andy Warhol said: “It’s not what you are that counts, it’s what they think you are.”

Farrah Pepper and her group did an excellent job of research and analysis of 103 e-discovery opinions issued between January 1st and June 30th 2010. This does not purport to be exhaustive list. In fact, they do not share how they selected these cases. This is one suggestion I have for them to improve the year-end report, which they promise to prepare and share for all of 2010.

Sanctions

As the graph from the report indicates, the most popular sanction remains costs and fees. They were awarded in 67% of the cases. The second most popular is an adverse inference instruction, which is typically a death-blow. Five percent (one case) was an outright dismissal.  All attorneys should pay special attention to the fact that counsel were sanctioned 10% of the time.

I predict that 10% rate will go up. It will go up because the old-liners who brag about how aggressive they are and market themselves as aggressive thinkers will continue to get caught. As Warhol said: “I don’t know where the artificial stops and the real starts.” Judges and opposing counsel are often forced to find out.

Eventually the rate will turn down again as counsel learn to channel and control their aggression and play by the rules. I dream of the day when lawyers will brag about being game-changing cooperative thinkers. Again, to quote Warhol: “And you live in your dream America that you’ve custom-made from art and schmaltz and emotions just as much as you live in your real one.”

Cooperation

The survey shows that bad lawyers who refuse to cooperate, or simply do not know how, continue to plague the system and drive these sanction cases. Their kind of traditional stale thinking is often a disservice to their clients.  As the report notes:

Courts continue to urge counsel to avoid or resolve discovery disputes through cooperation, often explicitly relying on The Sedona Conference® Cooperation Proclamation (“Cooperation Proclamation”). See Home Design Servs., Inc. v. Trumble, 09-cv-00964, 2010 WL 1435382, at *5 (D. Colo. Apr. 9, 2010) (Shaffer, Mag. J.) (quoting Cooperation Proclamation and stating that counsel “bear a professional responsibility to conduct discovery in a diligent and candid manner”); JSR Micro, Inc. v. QBE Ins. Corp., C-09-03044, 2010 WL 1338152, at *3 (N.D. Cal. Apr. 5, 2010) (Laporte, Mag. J.) (citing Cooperation Proclamation in holding that proper response to uncertainty in definition of term in 30(b)(6) notice would have been to meet and confer rather than “to unilaterally assume a narrow interpretation”); Cartel Asset Mgmt v. Ocwen Fin. Corp., 01-cv-01644, 2010 WL 502721, at *14 (D. Colo. Feb. 8, 2010) (Shaffer, Mag. J.) (instructing counsel “to work together consistent with . . . The Cooperation Proclamation“); Bldg. Erection Servs. Co. v. Am. Bldgs. Co., 09-2104, 2010 WL 135213, *1 (D. Kan. Jan. 13, 2010) (Waxse, Mag. J.) (directing counsel to read Cooperation Proclamation to understand their obligations to work cooperatively).

Even when not specifically citing the Cooperation Proclamation, courts encouraged parties to reach agreement on solutions to e-discovery problems.  See, e.g., Burt Hill, Inc. v. Hassan, No. Civ. A. 09-1285, 2010 WL 419433, at *8, *10 (W.D. Pa. Jan. 29, 2010) (Bissoon, Mag. J.) (ordering parties to meet and confer on scope of defendants’ request and search terms); Ross v. Abercrombie & Fitch Co., Nos. 2:05-cv-0819, et al., 2010 WL 1957802, at *13 (S.D. Ohio May 14, 2010) (Kemp, Mag. J.) (ordering parties to meet and confer to devise search protocol).

The report makes it obvious that in the world of e-discovery at least, true innovation requires fresh cooperative thinking, not the same old aggressive approaches. But that my friend is a big change. And as Warhol, a true innovator said:

When people are ready to, they change. They never do it before then, and sometimes they die before they get around to it. You can’t make them change if they don’t want to, just like when they do want to, you can’t stop them.

2010 Mid-Year Trends in Preservation

The survey found that judges are continuing to emphasize the duty to preserve ESI, and that this duty may be triggered before the filing of a complaint. See, e.g., Pension Comm., 2010 WL 184312, at *4 (noting that plaintiff’s ability to control timing of lawsuit can trigger plaintiff’s duty to preserve evidence prior to litigation); Crown Castle USA Inc. v. Fred A. Nudd Corp., No. 05-CV-6163T, 2010 WL 1286366, at *6, 10 (W.D.N.Y. Mar. 31, 2010) (Payson, Mag. J.) (plaintiff’s duty to preserve documents arose when plaintiff began labeling communications as privileged and hired litigation counsel, which was several months before suit was filed).

The report also notes that this duty to preserve goes beyond the obvious documents, such as email and attachments, and Office prodcuts, into what Gibson Dunn’s Farrah Pepper calls ”outlier ESI.” See: “Honey, I Forgot the Cell Phone: The 411 on ‘Outlier’ ESI.” By this she and report mean instant messages, texts, flash drives, personal emails, and the like. To support this proposition, which by the way I agree with, the report cites: OCE N. Am., 2010 U.S. Dist. LEXIS 25523, at *18 (duty to preserve instant messages); Passlogix, 2010 WL 1702216, at *24, 28 (duty to preserve Skype messages); Wilson, 2010 WL 1712236, at *2 (duty to preserve USB flash drive). This reminds me of another Andy Warhol saying: “An artist is somebody who produces things that people don’t need to have.”

2010 Mid-Year Trends in Search

Perhaps the most interesting part of the survey/report pertained to search where it was noted that “So far this year, several courts have refused to compel productions where the requesting party could not justify its proposed search terms. See, e.g., Seger v. Ernest-Spencer, Inc., No. 8:08CV75, 2010 WL 378113, at *9 (D. Neb. Jan. 26, 2010) (Thalken, Mag. J.) (denying motion to compel where defendant failed to show relevance of information sought by each of its 24 proposed search terms); Bellinger v. Astrue, CV-06-321 (CBA), 2010 WL 1270003, at *6-7 (E.D.N.Y. Apr. 1, 2010) (Gold, Mag. J.) (denying motion to compel where plaintiff offered no reason for propounding broad range of search terms long after initial searches were conducted and results culled).

The report also noted that several courts refused to take an active role in the design of search terms or specific search methodology. I certainly agree with these courts. This is a difficult task that requires qualified professionals with training, background and experience in search. How many judges are full-time e-discovery professionals? They should not be asked to do this. Lawyers should either take the time needed to learn this subject (thousands of hours) and do it right, or they should bring in an outside expert who can. Back to the report, it has this to say on the subject:

In a dispute over keyword search techniques, one court observed that “[n]either lawyers nor judges are generally qualified to opine that certain search terms or files are more or less likely to produce information than those keywords or data actually used or reviewed.” Eurand, Inc. v. Mylan Pharms., Inc., 266 F.R.D. 79, 84 (D. Del. Apr. 13, 2010) (Thynge, Mag. J.). While the court ordered the producing party to conduct another search, it refused to “enter the wilderness of keyword search usage and is not directing the appropriate search terms for plaintiffs to employ.” Id. at 85 n.31. This echoes similar discomfort expressed last year in William A. Gross Constr. Assocs. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135-36 (S.D.N.Y. 2009) (Peck, Mag. J.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, Mag. J.)

Edelen v. Campbell Soup Co.

Another case the report briefly mentions is Edelen v. Campbell Soup Co., 265 F.R.D. 676, 683, 692-93 (N.D. Ga. 2010). I think this employment discrimination case bears closer attention. But then again, like Andy Warhol, “I like boring things.” There are a number of interesting (to me) issues here. For one, the plaintiff sought sanctions against the defendant employer for designating too many documents as confidential. Talk about a frivolous motion! The defendants explained “that a large number of documents had to be marked confidential because they contained the personnel files of numerous employees not party to the lawsuit.” The motion was denied by the Magistrate Judge, then appealed to the District Court Judge J. Owen Forrester. Judge Forrester affirmed noting “that Plaintiff had not pointed to any document in particular that he felt was improperly designated. Reminds me of another Warhol quote: “I believe in low lights and trick mirrors.”

The plaintiff in Edelen also appealed the Magistrate’s denial of his motion to declare that there had been a waiver of attorney-client privilege as to certain emails that were inadvertently produced. The emails were from H.R. managers to in-house counsel and sought legal advice. The Magistrate found the review was reasonable and so denied “Plaintiff’s motion for sanctions for Defendants’ voluntary production of allegedly privileged documents.” The review was found to be reasonable because: “Defendants had three levels of attorneys review their production and only four pages out of 2000 were inadvertently produced.” Again, the appeal raised no new grounds and the decision was summarily affirmed. As Andy puts it: “Isn’t life a series of images that change as they repeat themselves?”

But wait, there were still more Campbell Soup contentions for Judge Forrester to deal with. Plaintiff argued that defendants should have been held in contempt for their failure to meet and confer with plaintiff’s counsel as the Magistrate had instructed. One can understand the reluctance to meet, but the Magistrate Judge found that the parties had in fact met and conferred as ordered, but reached an impasse. I have heard that argument before (if you can even call it that). If you do not meet and agree with me then you obviously did not meet and confer in good faith. Sorry Charlie, parties can agree to disagree. The good faith or not is detectable by the actual conduct, like filing frivolous motions, and frivolous appeals when those motions are not granted. Naturally Judge Forrester affirmed the Magistrate again.

But wait, there’s more. The next argument by the plaintiff is so sketchy, that I just have to quote Judge Forrester’s description of it:

Plaintiff states his counsel was required to spend time responding to improper motions by Defendants and yet Plaintiff was awarded no attorney’s fees. Plaintiff contends, therefore, that the sanction of Plaintiff’s counsel for failure to comply with a discovery order related to electronically stored information “at the same time refusing Plaintiff’s meritorious motions for attorney’s fees suggests or demonstrates that the standard for awarding attorney’s fees appears to be one-sided.” See Objections, at 14.

What was that again? It almost sounds like the plaintiff is now proceeding pro se or something. Judge Forrester responded to that so-called argument by saying:

Plaintiff’s objections are too generalized for review. The fact that Defendants were awarded attorney’s fees in one circumstance and Plaintiff was not in another is not a sufficient basis upon which to challenge the denial of attorney’s fees.

Judge Forrester next considered the plaintiff’s two Rule 30(b)(6) notices. Each was 40 pages long and contained 120 topics. Naturally the defendant objected as over-broad. Judge Forrester agreed saying: “It is not difficult to conclude that such notices are unreasonable in a single plaintiff employment discrimination action.”

Of course, there is still more. Plaintiff also made requests for production of ESI. You knew that was coming, I’m sure. Here is the court’s description of what happened, where the only thing surprising at this point is that he didn’t ask for 500 search terms:

Plaintiff then proposed a request that encompassed 55 custodians and 50 search terms over a three-year period. Defendants objected to this proposal noting that for 2006 alone, such a request would produce 474,456 pages of documents. Defendants proposed narrower search terms and fewer custodians. Plaintiff never filed objections to this proposal and the court directed Defendants to conduct the search as they proposed.

But still, even though he did not object at the time, the plaintiff appeals the Magistrates order and argues that:

Defendants’ simple cry of “burdensome” is factually unsupported. Plaintiff argues that the search terms proposed by him were reasonable and should have been adopted by the Magistrate Judge.

Pretty persuasive argument, huh? Here is Judge Forrester’s response, which shows far more patience that I would have had at this point:

Based on Defendants’ proffer as to the number of documents that would be generated by Plaintiff’s proposed electronic search, the Magistrate Judge had a sufficient factual basis upon which to determine that Plaintiff’s electronically stored information document request should be narrowed.

Plaintiff’s Go Fish approach is a model of inefficiency. See: The Multi-Modal “Where’s Waldo?” Approach to Search and My Mock Debate with Jason Baron, and Child’s Game of “Go Fish” is a Poor Model for e-Discovery Search. The actions of plaintiff’ and his counsel in this case help explain why my preferred Where’s Waldo approach to search put the producer in charge of search and limits the requesting party’s input. It also puts proportionality front and center, which is another trend the survey notes.

2010 Mid-Year Trends in Proportionality

The Gibson Dunn report has a good section on proportionality. The report concludes that there is a growing awareness in courts about the burdens associated with collecting, searching and producing ESI.  It recommends that claims of expense and burden be supported by technical consultants and cites to: Universal Delaware, Inc. v. Comdata Corp., 07-1078, 2010 WL 1381225, *7 (E.D. Pa. Mar. 31, 2010) (Perkin, Mag. J.) (opinion of “electronic evidence consultant” relied upon for advice on construction of least-expensive search database); Seger, 2010 WL 378113, at *8 (affidavit from “the Director of Information Technology and Architecture” relied upon to show that the production requests were “overly broad” and “costly”); Rodriguez-Torres v. Gov’t Dvlp’t Bank of Puerto Rico, 265 F.R.D. 40, 44 (D.P.R. Jan. 20, 2010) (consultant’s report relied upon to show cost of producing requested ESI).

Here is the report’s conclusion based on analysis of the first six months of 2010:

Where litigants made a sufficient showing of undue burden–e.g., that the expense was disproportionate to the anticipated benefit–courts denied discovery. See, e.g., Rodriguez-Torres, 265 F.R.D. at 44 (denying plaintiff’s motion to compel production of emails over 3-year period on grounds that “the ESI requested is not reasonably accessible because of the undue burden and cost”). Courts also ordered limitations on the number of search terms, the number of custodians, and the length of time covered. See, e.g., Edelen, 265 F.R.D. at 693; Rosenbaum v. Becker & Poliakoff, P.A., 08-CV-81004, 2010 WL 623699, at *9 (S.D. Fla. Feb. 23, 2010) (Johnson, Mag. J.) (applying “rule of proportionality” to limit defendant’s search for responsive documents to 6-month period, rather than plaintiff’s requested 18-month period).

As Warhol said: “Art is what you can get away with.”

2010 Mid-Year Trends in Social Networking and E-Discovery

I am not going to report on all of the topics the survey/report covers, but one more bears examination here, namely the current rage of social media discovery. Here is their conclusion, which I generally agree with:

Information found on social networking sites continues to regularly appear as evidence in courtrooms around the country in both civil and criminal cases. …  see also Partee v. United Recovery Group, No. CV 09-9180, 2010 WL 1816705, at *2 (C.D. Cal. May 3, 2010) (introducing evidence from plaintiff’s MySpace page); Zamecnik v. Indian Prairie Sch. Dist. No. 204 Bd. of Educ., No. 07 C 1586, 2010 WL 1781771, at *6 (N.D. Ill. Apr. 29, 2010) (noting number of people joining Facebook page as evidence); United States v. Gagnon, No. 10-52-B-W, 2010 WL 1710066, at *3 (D. Me. Apr. 23, 2010) (Kravchuk, Mag. J.) (accepting evidence from Facebook page); Sedie v. United States, No. C-08-04417, 2010 WL 1644252, at *23 (N.D. Cal. Apr. 21, 2010) (Laporte, Mag. J.) (introducing evidence from plaintiff’s MySpace and Facebook pages to dispute personal injury claims); Steinberg v. Young, No. 09-11836, 2010 WL 1286606, at *7-8 (E.D. Mich. Mar. 31, 2010) (accepting evidence from LinkedIn profile); United States v. Beckett, No. 09-10579, 2010 WL 776049, at *2 (11th Cir. Mar. 9, 2010) (accepting evidence from MySpace page).

Courts that have considered the issue acknowledge that discovery from social networking sites may carry different privacy concerns than traditional discovery. In EEOC v. Simply Storage Management, LLC, No. 1:09-cv-1223 (S.D. Ind. May 11, 2010) (Lynch, Mag. J.), the defendant sought discovery from the plaintiffs’ Facebook and MySpace accounts, because plaintiffs’ “emotional health” was in issue. Id. at 3. The court allowed the discovery, observing that “[i]t is reasonable to expect severe emotional or mental injury to manifest itself in some [social networking] content.” Id. at 8. Plaintiffs and defendant disagreed on the scope of information to be discovered, with plaintiffs fearing that the information discovered could embarrass them. Id. at 12. The court discounted this argument, noting that the production of information posted to Facebook or MySpace had already been shared “with at least one other person through private messages or a larger number of people through postings.” Id. In another case where a party raised privacy concerns about the public dissemination of photographs she had already posted to her Facebook account, the magistrate judge offered to create a Facebook account for himself “[i]f [the parties] will accept the Magistrate Judge as a ‘friend’ on Facebook for the sole purpose of reviewing photographs and related comments in camera.” Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010) (Brown, Mag. J.).

Conclusion

The Gibson Dunn 2010 Mid-Year Electronic Discovery and Information Law Update provides discovery professionals with yet another valuable legal research tool. The price is right too. They ask us all to “stay tuned” for their 2010 Year-End Report. I for one will do that. As mentioned, I would like to know more about the research and selection that goes into the survey. It would also be helpful to have a chart of all of the cases with issue demarkation, or maybe by Circuit. Kroll and Fullbright look out, there is yet another annual e-discovery survey and report on the scene.

Please feel free to leave a comment about this survey, cooperation, game changers, the Campbell Soup case, social networking, your favorite Warhol quote or image, or whatever. As Andy Warhol put it: “In the future, everybody will be world famous for fifteen minutes.” Now’s your chance for about 30 seconds of that.

3 Comments | Lawyers Duties, Search, Spoliation/Sanctions | Permalink
Posted by Ralph Losey

The Poetry of e-Discovery: People Not Only Make Mistakes, They Lie, Steal, Cheat and Fake

July 5, 2010

Last week I wrote about how the law accounts for the fact that we all make mistakes. The law does not punish if reasonable efforts are made, and the efforts are real, not fakes. I made a plea to all judges hearing sanction cases to remember that one error does not per se negligence make.

This week I go beyond simple mistakes into the dark worlds and celebrate the poetry of e-discovery. Although the law does not demand perfection, especially in complex discovery, it does require a full measure of forthright honesty. The law knows that people not only make mistakes, they lie, steal, cheat and fake. Our system of justice exists to discourage and punish lying, stealing, and the rest. Indeed, we lawyers are constantly dealing with the dark side of human nature, which explains why we are more jaded than the rest.

This brings me to a new case, the one that this blog will embrace: Genworth Financial Wealth Management Inc. v. McMullan, 2010 U.S. Dist. LEXIS 53145, (D. Conn. June 1, 2010). It also brings me to a bit of real poetry, the meta-theme of this week’s off beat reverie.

The lawyers, Bob, know too much.
They are chums of the books of old John Marshall.
They know it all, what a dead hand wrote,
A stiff dead hand and its knuckles crumbling,
The bones of the fingers a thin white ash.
The lawyers know a dead man’s thoughts too well.

Carl Sandburg (1878-1967)

———————

A Lawyer’s Disclaimer

First, to be clear, in discussing this case I am not accusing anyone here. I know too much for that. I have no personal knowledge of the facts. I will just report the written word of United States District Court Judge Vanessa L. Bryant. I may also add a few personal opinions of my own, but no assertions of fact. After a lifetime of working on cases like this, for both plaintiff and defense, I have no shortage of that. I know too much. Not knowledge like Sandburg thinks, from the old Learned Hand, but from experience with litigants just like this, over a thousand. Things have not changed that much from the times of Marshall and Lincoln, we old lawyers still know what most defendants are thinking. We know what goes on in their head. We know too much from both the living and the dead.

See here for my standard full disclaimer. Then listen to the judge and don’t blame me, blame her.

Court’s Statement of Background Facts and Procedure

In Genworth the defendants are accused of theft of trade secrets to solicit clients of their former employer. Plaintiff claims these acts are damaging, a real and potent destroyer.  A violation of the Computer Fraud and Abuse Act, the Connecticut Uniform Trade Secrets Act, the Stored Communications Act, and Connecticut common law’s prohibition of tortious interference with business relationships. This is serious. It goes well beyond a case of loose lips.

Genworth, a financial services company, alleges that while defendants were still Genworth employees, they obtained copies of Genworth’s Automated Contract Tracking (ACT) database. This contains “client names, phone numbers, contact information, portfolio management history, and client notes.” Plaintiff claims that when defendants left their employment, they took plaintiff’s proprietary database with them, formed their own competing company, TJT Capital Group LLC (also a named defendant), and used the database to solicit hundreds of Genworth’s current and former clients. Defendants respond to these accusations with defiance. They deny the allegations of theft. The database, they say they left. They claim they obtained the client information by legal means and dowry, including Internet searches and a very potent memory.

Genworth naturally found out about defendants actions with haste, since it was, after all, their customers going to waste. Genworth’s counsel immediately sent out a preservation demand letter. This proved to be a good idea, hard to find one better. The letter instructed defendants to preserve all relevant electronically stored information. A demand clearly made in anticipation of litigation. Genworth soon thereafter filed suit. It then promptly propounded document requests seeking production of ESI and return of the stolen loot. The defendants made a production which pointedly omitted any email at all (yes, you read that right, none). Defendants also failed to produce any or all of the ACT database they allegedly stole, no byte of data, not a single one.

Plaintiff’s counsel reacted by seeking assurances from defendants’ lawyers. Assurances that forensic imaging had been undertaken. Plaintiff’s counsel raised many concerns, including, if I’m not mistaken, the automatic deletion of temporary and inactive files. Defendants’ counsel said no, they had no image made. Moreover, they had no intention to do so. Plaintiff’s counsel did not appreciate this hostile reply. He countered by seeking relief from the court nearby. He  filed a motion, long in length and erudition:

… for a court order to compel the Defendants Timothy McMullan, James Cook, Timothy McFadden, Karen Bazon, Tamara Rivera, and TJT Capital Group LLC. (“TJT Capital”) to submit their computers and electronic media devices to forensic mirror imaging and examination by a neutral court-appointed forensic expert. The Plaintiff also seeks a court order for the preservation and production of evidence pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) and Local Rule of Civil Procedure 37(c), and sanctions in the form of reasonable attorneys fees and costs associated with the Plaintiff’s motion.

This order contains the rulings made on these motions by Judge Bryant.  After that, the defendants finally became compliant.

The Trial

The evidentiary hearing on the sanction motions took place on April 8, 2010 and April 10, 2010. The Plaintiff presented documentary evidence in support of its requests. Defendant McMullen was also called and testified regarding his handling of the Genworth client data. Genworth’s evidence included highly relevant emails produced under a subpoena by a non-party, the Charles Schwab Corporation, to two of the defendants. These emails were not produced by Defendants. By the way, this is the usual way you go about showing spoliation. You prove the party should have the ESI, since it was sent to or from them, suggesting they now lie about the whole problem.

Defendant McMullen tried to explain this non-production by a story of his honest efforts. He threw the PC in the trash, yes, but only did so to be compliant. He was just trying to do the right thing, not somehow be defiant. The offending computer had the secret ACT database on it, he’s not sure how or why, and, alas, when he threw in it the can, the emails were lost too. An honest mistake he claimed. He was not trying to hide the truth. Still, he admitted under oath that he may, just maybe, have thrown the computer away after the Genworth preservation demand letter. The plot now thickens, conjuring the old wisdom of Dickens who said: Lawyers hold that there are two kinds of particularly bad witnesses–a reluctant witness, and a too-willing witness.

Here is Judge Bryant’s interesting summary of the testimony and evidence presented at these hearings:

The Plaintiff presented evidence that Defendant Timothy McMullen, the principal of Defendant TJT, used his personal computer and personal e-mail address to download, access, and transmit the Plaintiff’s proprietary information without a scintilla of a reasonable expectation to his entitlement thereto or other legitimate justification therefore. Defendant McMullen, while testifying before this Court, admitted that he spoliated evidence when he discarded a personal computer, on which he admittedly accessed and transmitted Genworth’s proprietary information, in a trash can, hard drive and all.

He further testified that he discarded the computer after having been advised by counsel that he had no right to the Genworth data that he had downloaded while employed by Genworth.

The Plaintiff effectively impeached Defendant McMullen’s testimony through exhibits and testimony evidencing that he sent emails to Schwab from his personal email account and the personal computer after the date that he testified as having discarded the computer. Defendant McMullen falsely testified before this Court about the handling of at least one of the electronic devices from which the Plaintiff sought ESI production. Even if Defendant McMullen in fact discarded the computer as he claims, the timing of the computer’s disposal evidences a consciousness of wrongdoing as to his disclosure of Genworth information.

How would you rule if presented with evidence like that? I am reminded again of Charles Dickens: Dishonesty will stare honesty out of countenance any day in the week, if there is anything to be got by it. But wait, there’s more. Judge Bryant continues:

Furthermore, the Plaintiff has also introduced evidence of the voluminous and detailed nature of the client information at issue, undermining if not rendering utterly incredulous the Defendants’ contention that they recalled by memory and discovered through internet searches and other research the detailed client data, including the information that they allegedly conveyed to Schwab in anticipation of their departures. Moreover, the unique and detailed quality of the lists, which include idiosyncratic characteristics of the data undermine any credibility that the Defendants’ contentions might have had.

The judge, who listened to the testimony and observed the demeanor of the witnesses, not only concludes that the defendant lied under oath (falsely testified), but calls their defense utterly incredulous, which, as language buffs well know, is not the same thing as incredible. To buy the defense here would be a strain, even for the gullible.

Judge Bryant then succinctly summarizes the evidence and finds and holds that:

Genworth has alleged and provided evidence supporting its contention that the Defendants used “the computers, which are the subject of the discovery request, to secrete and distribute plaintiff’s confidential information” there is a sufficient nexus between Genworth’s claims and its need to obtain a mirror image of the computer’s hard drive, warranting the imaging requested by the Plaintiff. Ameriwood, 2006 WL 3825291, at *4. The Defendant McMullen’s admitted spoliation of incriminating evidence and Schwab’s disclosure of documents impeaching McMullen’s testimony that he discarded the computer lend further support.

Still, the defendants keep arguing and claim they should not have to pay for the forensic expert. Their grounds are that they already hired an expert. But wait until you see what they hired him to do. It took a lot of chutzpah to make that argument with a straight face, but Judge Bryant’s response quickly put them in their place:

The Defendants initially refused to image their computers and only retained a computer consultant to do so after the Plaintiffs’ motion for a neutral court-appointed expert was pending before this Court. The Plaintiff filed its motion only after seeking the Defendants’ agreement in ensuring forensic imaging of the devices in question. The testimony at the evidentiary hearing however reflects that the Defendants did not exercise diligence in imaging all relevant electronic devices, and instead selectively identified only certain TJT Capital business computers that were not used during the period of misappropriation activity that was alleged to have occurred while the Defendants were still employed by Genworth.

The totality of the circumstances under which the Defendants retained a forensic computer expert suggests an end run in furtherance of efforts by the Defendants to deny the discovery to which the Plaintiff is entitled. Moreover, the Defendants’ contention that they cannot afford to pay an expert is belied by their retention of their own expert while the motion for the appointment of a neutral expert for both parties was pending.

So they hired an expert to go around and image the computers they knew were clean, and kept him away from the real computers that mattered. Then they had the gall to complain about the costs of a forensic exam to uncover the evidence the defendants tried to destroy. Who thought that was a good idea to try to sell to the judge? I am reminded of another stanza from Carl Sanburg’s poem, The Lawyers Know Too Much.

In the heels of the higgling lawyers, Bob,
Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.

But wait, there’s still another door. The defense lawyers also try to fight the forensic expense by pleading poverty, that the big plaintiff can afford to pay for it easier than they can. How do you think that higgling argument will go over at this point? Here is how Judge Byrant responds:

In further objection to the appointment of a forensic expert, the Defendants cite expense and the relative financial ability of the parties to pay the cost of such an expert. [Doc. #42]. But yet it is the Defendants’ apparent deceit, obstreperousness and destruction of relevant information, that the Defendants were required to maintain and preserve, that necessitates the retention of a neutral forensic computer expert to ascertain what, if any, data existed on any and all computer and electronic storage devices to which the Defendants had access during the relevant period. In light of the Defendants’ culpability in necessitating the expense of a neutral expert, the cost for the appointment of a neutral forensic expert is to be borne 80% by the Defendants and 20% by the Plaintiff.

The only thing I find mysterious about that ruling is why the plainitff’s were required to pay anything at all, but then courts’ usually split the costs of these forensics 50/50 or make the requesting party pay. By the way, for you vocab fans, obstreperousness is another great word to know. It basically means noisy defiance, a really bad show. Not a good thing to do to a federal judge. The may remember and hold a grudge.

Obviously defense counsel here are not among the early adapters of The Cooperation Proclamation. Too bad. A cooperative approach could have saved their clients a lot of time and money. They have not learned the lesson that it is sometimes its better to forego the stick and use the honey. But then again, if that had happened here, this opinion would not be so funny.

Here is what Judge Bryant thinks:

The Court further notes that the Plaintiff’s motion for sanctions is warranted by the fact that it had to seek Court orders to obtain that to which it has been entitled but which the Defendants unreasonably and dubiously refused and possibly intentionally made unavailable. The Defendants were wholly unjustified in their position as they tacitly admitted by finally hiring a computer imaging expert. The Defendants have wasted the Plaintiff and the Court’s resources in necessitating the judicial resolution of this discovery dispute.

Possibly intentionally made unavailable, is a statement likely indeed to be unassailable. This all means the judge has concluded defendants intentionally hid the ball, and so now that is how the gavel must fall.

The Order

The Court concludes by providing the plaintiff with all of the relief it requested, including appointment of a neutral forensic expert, production of all computers to the expert for imaging, delivery of information recovered to defense counsel for first review for relevance and privilege, followed by production of the ESI to plaintiff, and an award of attorneys fees and costs. The plaintiff here wins, a new expert begins, and the defense? Well, it takes a hit on the shins.

The Law

Judge Bryant analogized the facts before her to those in Ameriwood Industries Inc. v. Liberman, 2006 WL 3825291, at *3, *6 (E.D. Mo. Dec. 27, 2006), amended by 2006 WL 685623 (E.D. Mo. Feb. 23, 2007). In Ameriwood, like Genworth, the computers the plaintiff sought to image and examine were alleged to have been used in connection with the plaintiff’s claims — in this case, trade secret violations. This factor, along with the extreme facts, superseded the defendants’ privacy concerns.

Judge Bryant first noted that a party requesting ESI discovery is not normally “entitled ‘to a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.’” The court focused on the analysis in Ameriwood, which involved similar alleged violations of the Computer Fraud and Abuse Act by former employees who started a competing company. In Ameriwood the court ordered the creation and examination of images of the former employees’ computer hard drives after evidence showed that the defendants intentionally withheld all responsive documents. In balancing the privacy interests of the defendants in their computer data against their alleged bad faith behavior, the court held that the use of the particular computer in the alleged fraud was a key element: “[A]llegations that a defendant downloaded trade secrets onto a computer provide a sufficient nexus between the plaintiff’s claims and the need to obtain a mirror image of the computer’s hard drive.” Id.

Judge Bryant in Genworth held that the similarities between the facts in this case and Ameriwood suggested that similar remedies were appropriate. Judge Bryant held that full imaging and forensic examination of the defendants’ ESI sources was warranted, She explained that Genworth “has exhaustively established that forensic imaging by a neutral expert is the only way that the Plaintiff will be able to secure the electronic data to which it is entitled.” Judge Bryant pointed to the lack of any reasonable justification from the defendants for transmitting Genworth’s proprietary data to their personal computers, or for throwing McMullen’s computer into a trash can. She noted that “the timing of the computer’s disposal evidences a consciousness of wrongdoing as to his disclosure of Genworth information.”  Thus ends the Court’s castigation.

Concluding Poem

I am reminded of a poem written by one of my students below. It is perhaps the first of its kind in a new genre of post-modern literature: e-discovery poetry. I encourage my readers to write and leave here their own legal poems; I make this a general plea. Be brave and join with me. Have courage to sing the body electric of legal discovery. It does not have to meet the high standards of W. H. Auden, shown right, or his great poem Law Is Love. Obviously my low writing in this blog is far from the above. I only ask that your contributions in some way, or degree, pertain at least obliquely to the noble art of e-discovery.

SANCTIONS

Temporary internet files,
Store records that go on for miles,
To delete them is fair,
If no reason is there,
to think they could be used in a trial.

Lawyers often think about spoliation,
of evidence which has no relation.
But if the files the parties erase,
were important to the case,
then the judge may give consideration.

The judge may take into account,
the production cost and amount,
the importance of documents sought,
and whether they’re accessable or not,
to determine if sanctions can mount.

But at the end of the day,
the Defendants will pay,
If after the litigation is pending,
its employees are deleting or amending.

6 Comments | Forensic Exam, Spoliation/Sanctions | Permalink
Posted by Ralph Losey

People Make Mistakes

June 25, 2010

“People make mistakes.”  This simple three word sentence is how Chief Justice John Roberts begins his opinion in Conkright v. Frommert, No. 08-810 (Apr. 21, 2010). He goes on to add: “Even administrators of ERISA plans.” Then he explains how complicated those plans can be. As a former ERISA litigator, I know he’s right, as I have read far too many ERISA plans myself. But let me tell you, as an attorney who left ERISA to focus solely on e-Discovery in 2006, it’s nothing compared to ESI plans.

As complicated as the facts and law are in employee benefits disputes, the world of electronic discovery with its ever-changing technologies is far more complicated. So if the Supreme Court is inclined to give ERISA administrators a break, which they did in Conkright, then surely they will do the same in e-discovery too, if and when such a case ever darkens their door. The Justices of the Supreme Court may not have a good grasp of today’s technology, as I examined in The-times-they-are-a-changin’ is a feeble excuse for disregard of duty, but they do have a good grasp on human nature and the law. They know the proper standard for judicial review is reasonability, not perfection.

The lower courts should also recognize this simple truth, that people make mistakes, and so too do the computer systems they design and run. The law should never demand perfection. Judges need to better understand that this applies to the world of ESI spoliation and sanctions too. The law should only demand reasonable, good faith efforts to preserve, collect, review and produce. If these efforts are made, but mistakes still happen, for instance an email is not preserved, or a privileged document is produced when it should have been withheld, there should be no sanctions. The judges should recognize the limits of our humanity, and the enormous complexity of our task, as Chief Justice Roberts did in Conkright. They should temper their response accordingly.

Judge Scheindlin gets it. In her most recent landmark case, 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), which she amended twice after catching mistakes in her opinion, Judge Scheindlin said:

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.

Id. pg. 1. She then goes on to qualify that although perfection is not required, reasonable efforts are required, and the standards for acceptable practice have evolved quite a bit since she wrote Zubulake. See Eg. Raising the Bar – Judge Scheindlin Defines Gross Negligence in Spoliation. Also see: BREAKING NEWS: Judge Scheindlin Amends Pension Committee Again.

But sadly, not all judges get it. If any mistakes are pointed out to them, they rush to sanctions, sometimes even including waiver of the attorney-client privilege. In my opinion, that is what happened to the Venable law firm in Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). They missed  several attorney-client emails, and accidentally produced them, instead of withholding them. According to the court’s own findings of fact, the mistake was made primarily because of an error of some kind in the indexing of one of thirteen Concordance databases the firm was using to run this large project.

The Magistrate Judge who issued the ruling seemed to be motivated more by the contents of what she read in the emails, than by the law. She departed from the law’s demand of reasonability, not perfection. She glossed over the software failure (we all know that no software is perfect and all computers can and will fail), and instead focused on the law firm’s failure “to perform critical quality control sampling to determine whether their production was appropriate and neither over-inclusive nor under-inclusive, even though Venable was counsel in the Victor Stanley case.” For the full story on this case see: The Good, the Bad, and the Ugly: “Mt. Hawley Ins. Co. v. Felman Production, Inc.”

What does this mean? People make mistakes. In e-discovery, particularly in complex cases, as Feldman surely was, mistakes happen all of the time. So, unless you have a wise and forgiving technophobe like our Chief Justice hearing your case, or a technologically sophisticated jurist like Judge Scheindlin, you may be required to double-check your work with sampling before it goes out the door. This may be what is now necessary to protect yourself against the inevitable mistakes. If you don’t, and a mistake causes harm (or someone argues it does), you may be found to have acted unreasonably. You know that movants for sanctions will cite Felman and others to argue that it is negligent not “to perform critical quality control sampling.”

People may make mistakes, that’s ok. But if the person is a lawyer or technician in an e-discovery project, they may now be expected to do some sampling to try to catch their mistakes. I am not saying this is right or wrong, but it does seem to be a trend.

So must we all now practice defensively and sample everything? Not only that, must we carefully document our sampling and be prepared to share it someday with a skeptical court? Shall I start working on a new online course for law schools called Sampling 101?

Will our clients agree to pay for this added step in an already pricey process? Do they have any choice if they want to improve their odds of protecting their privileged communications?

What do you think? Should sampling now be a requirement for reasonability? Is it already a best practice? If so, for all cases or just a few? If just a few, which ones? Moreover, what does sampling cost? What does it entail? How many lawyers really know how to sample anyway? How many know the significance of the number 1537? Do you know what it means to have an estimate of +/- 5% with a confidence interval of 95%? Do you care? If so, see eg. the EDRM Search Guide Appendix on Sampling. Are all lawyers expected to know this stuff? Or just the ones that happened to be in Victor Stanley case?

ERISA lawyers have it easy. If you want a real challenge, become an e-discovery lawyer.

5 Comments | Lawyers Duties, Review, Search, Spoliation/Sanctions, Technology | Permalink
Posted by Ralph Losey

The-times-they-are-a-changin’ is a feeble excuse for disregard of duty

June 19, 2010

The-times-they-are-a-changin’ is a feeble excuse for disregard of duty. Justice Antonin Gregory Scalia Concurring Opinion in City of Ontario, California v. Quon, 560 U. S. _ (June 17, 2010).

Justice Scalia may not be one of your favorite judges, but in this one line in Quon he sums up the core problem with the law today. Not surprising, he does so by borrowing from the unacknowledged poet laureate of our Age, Robert Allen Zimmerman (a/k/a Bob Dylan). Here is the context of this quote in this conucrring opinion to Quon:

Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication, ante, at 10, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.

I agree with Justice Scalia (I cannot believe I am writing this). The Quon decision is opaque and merely case-specific. It is of little value to attorneys and employers. We are  still in the dark as to what we can and cannot do in this area. So too are the judges who must decide electronic privacy disputes. But the profundity of Scalia’s comment goes beyond this particular case. I do not know if he realizes this or not (I am beginning to think he does), but the whole profession, not just the Supreme Court, is shirking its traditional duties simply because new technologies are sometimes difficult.

The Lag Between Law and the Rest of Society is Dangerous

Lawyers and judges are not keeping up with technology and this failure is endangering our whole profession, indeed our whole way of life. If we do not keep up, if we disregard our duty of competence and diligence just because it is hard, just because the-times-they-are-a-changin’ so fast, then we fail as lawyers. This weakens our whole legal system. That is a big deal in a country like ours, where we govern by laws, not people; where we take our fights to court, not the street.

Although we govern by law, not the whims of dictators, our laws, our courts, are run by people, they are run by lawyers and the other professionals who work with lawyers. We lawyers have to keep up with the changing times or risk becoming irrelevant. We have to try harder. Failure is not an acceptable alternative. Lawyers must understand the world in which they live in order to do their job effectively. When it comes to technology, most of us are failing. As George Paul puts it in his book Foundations of Digital Evidence (ABA 2008):

Quite simply, how can lawyers of the new millennium do their jobs without understanding basic concepts about digital evidence? Without an understanding of how to test, prove, or attack the information of our new age, aren’t lawyers mere ghosts of the past? Where should we test and probe, and where do we shore up? Do we understand the new information well enough to do these traditional jobs?

Is Our Supreme Court Hopelessly Out of Touch?

Is our Supreme Court a dead-end filled with judges who are ghosts of the past great jurists? Are they becoming obsolete because they cannot understand something as technologically simple as a pager and as ubiquitous as a text message? Justice Scalia seems to sense this and so invokes Dylan to chastise the rest of the justices. He accused them of dereliction of duty because they refused to decide the important issues raised by Quon. They did so primarily because the case involved technological issues beyond their kin.

Frankly, it seems like any technology originating after 1950 is beyond the comprehension of certain justices of the Supreme Court, including especially its fearless leader, Chief Justice John G. Roberts. Our top judge is said to write his opinions in long hand on pen and paper. We know at the oral argument in Quon he asked: “What is the difference between the pager and the e-mail?” Were his law clerks who briefed him on the case clueless too? I note that the Ivy League schools who supply most of the clerks for the Supreme Court have no e-discovery classes. Do you think the Justices consider their technological savvy in deciding whom to hire? Would they even know?

The other justices of the Supreme Court appear to be no better equipped to understand the technological world in which the rest of us live. For instance, the author of the Quon opinion, Justice Anthony Kennedy, asked during argument what would happen if someone was sending a text at the same time another was texting them, would the pager say  ”Your call is important to us, and we will get back to you?”

The Lack of High Court Leadership Ups the Ante for Lawyers

There is no escaping the inevitable conclusion that we are led by ghosts of the past. We cannot expect any solutions to problems arising from technology to be provided to us from above. Our courts are reflective of their leaders. With Quon as a shining example, they will all be inclined to punt any time something remotely technological comes before them. No, the answers will not come from the high courts, they will have to come from us, the rank and file legal practitioners.

Do not expect the trial judges to do your work for you either. Most are old-school like our appellate courts. Thank God there are a few brilliant exceptions on the bench. Some judges are real, they are in touch, they are online, and they get it. They write the e-discovery opinions that provide important guidance to us all. Still, these few ghost-busters will not be enough, and their important work will fail, if they are not supported by vast numbers of lawyer practitioners and by our law schools.

So far, most academics are not stepping up to the plate. Most seem as clueless as our Justices. They teach civil procedure and spend only five minutes on e-discovery by mentioning Zubulake, which they all seem to mispronounce Zoo-Boo-Lakie. Most professors, like judges, have no first hand experience with e-discovery. When they were practicing attorneys (if they ever were), there was no such thing. Out of sight, out of mind. It is like Plato’s analogy of the cave, all they have ever known are paper shadows. Thank God for the exceptions like Professor Steven Gensler, the University of Florida, and a few others.

We need a much stronger response from our law schools if we are to remain relevant. Offering a two-credit course once a year may be better than nothing, which is still what most schools do, nothing, but it is still woefully inadequate. Electronic Discovery should be a three-credit course offered every semester by every law school in the country. Advanced classes should be offered too. Otherwise, we will continue to graduate students unprepared for modern legal practice. Our Justices and their clerks will continue to wonder what the difference is between a pager and an email. We cannot keep graduating new lawyers who are no more prepared to fulfill their duties than the old lawyers they replace.

The law requires attorneys, professors, and judges to understand the new information well enough to do their traditional jobs. We need solid citizens who are not derelict in their duties just because The-times-they-are-a-changin’. Until we do, instead of leadership and direction from appellate courts, we will get more of the kind of talk we see in Quon explaining their refusal to address important issues of online privacy:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. … At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve. …

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.

With a court like this, we all need to up our game to keep our profession relevant. The burden falls on lawyers to puzzle our for themselves on a case by case basis what is right and what is wrong. The Supreme Court itself has no idea, just the common sense not to further mess things up by rendering anything but narrow opinions on subjects beyond their kin, beyond their once ivory, but now paper towers.

Keeping Lawyers Relevant

To avoid becoming living ghosts, we must study, we must understand the gadgets our children use. We must take Malcolm Gladwell’s 10,000 hours findings to heart. I am again reminded of the words of George Paul:

If we abandon our role as society’s experts in information, we loose our power and importance – our righteous calling as the high priests of information. …

In short, law is evolving at the start of the new millennium. We are at a crossroads – a change of phase. With our new information and infrastructure, the concept of written evidence has reached a critical tipping point. Judges, professors, students, and thinkers must rewrite the rules. When something so important to civilization as writing suddenly morphs into a new system, the world’s institutions, but particularly its legal systems, simply must adapt.

The specialists in this area who have learned and adapted, and fortunately there are many, must take time to  provide guidance to other attorneys in our profession who want to learn. It may not be billable, but you owe it to your profession, to your children’s children.

These specialists, many of whom are, I know, reading this essay now, should also take time to provide guidance to the next generations. They should fight to teach in their law school. It will not be easy, but the students in school now may well be our best hope to survive in the coming very difficult years.

In the past we had moments of inspired brilliance from the high court to lead us, but that is not likely now, not when most of our high court is filled with ghosts mystified by the online world. We cannot expect strong leadership from the high court in important technology grounded issues any more than we can expect strong personalities on the court (otherwise they would never be confirmed). In a world where judges shy away from all things technological, which is likely for the next decade or so, the individual lawyers and law firms become far more important.

We have all donated time in countless CLEs for adult practitioners, but are they accomplishing what we hoped? I am not saying to give up. I am saying that we should also focus on our schools and on the coming generations. We should educate the baby-lawyers on the way in, not the seniors on the way out. Aside from the obvious reasons for this, the young students today appear to be better prepared psychologically to deal with non-stop rapid technological change. Most of my generation is not used to it at all. We are in culture-shock. We need to shake it off and embrace change, including a change in the focus on our teaching efforts. We now need to emphasize law schools, not CLES. If we do that, there is a good chance that in the future our best and smartest judges will know the difference between a pager and an email, a twit and a twat.

Dylan and e-Discovery

In my online course on Electronic Discovery I try to be creative and engage students on a number of interactive levels. One of my more novel assignments, one that they all seem to like, is to provide me with a Bob Dylan quote that seems somehow appropriate for e-discovery. It point them to some of my obvious favorites, like this one from Ballad Of A Thin Man:

You walk into the room
With your pencil in your hand
You see somebody naked
And you say, “Who is that man?”
You try so hard
But you don’t understand
Just what you’ll say
When you get home

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

…

You’ve been with the professors
And they’ve all liked your looks
With great lawyers you have
Discussed lepers and crooks
You’ve been through all of
F. Scott Fitzgerald’s books
You’re very well read
It’s well known

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

After my above critique of the Supreme Court and the Joneses now on it, the application of this lyric should be obvious.

I challenge my students to find some more Dylan and to explain to me how and why the lyrics they select are relevant. I get some great answers, and some of our law students today give me hope for tomorrow. Here are just a few:

Trust yourself,
Trust yourself to know the way that will prove true in the end.
Trust yourself,
Trust yourself to find the path where there is no if and when.
Don’t trust me to show you the truth
When the truth may only be ashes and dust.
If you want somebody you can trust, trust yourself.

I think this applies to e-discovery and cooperation because even though you should cooperate with opposing counsel, I think it is important to become acquainted with e-discovery yourself and know what’s going on so you can make an informed decision as to what is best for your client.  As Bob Dylan says, I think at the end of the day you can only trust yourself, and this certainly applies to making a competent decision as an attorney.

________________

The judge, he holds a grudge
He’s gonna call on you
But he’s badly built
And he walks on stilts
Watch out he don’t fall on you.

My legal education so far has taught me that judges hate it when you waste their time and aren’t completely honest to them or to your duties to the court.  This strikes me as coming in a situation where a counsel in discovery has not fulfilled their obligation to attempt to craft a discovery plan in good faith, as in the Gensler article, where this is done with little to no reason by the bad acting side, when called on, they generally don’t have an answer for delaying or impeding discovery.  The judge is not badly built, but the foundation he has, specifically the FRCP are, they are very vague when it comes to discovery, and if the judge can hold a grudge as we have seen in Coleman and Zubulake, when he falls on that opposing counsel, it is in the form of sanctions, they can be quite painful, almost like being fallen on by someone with stilts, that extra height harnesses the gravity, and messes you up.

________________

Nothing (i.e. relevant discovery) was delivered
But I can’t say I sympathize

With what your fate is going to be, (i.e. sanctions)
Yes, for telling all those lies.
Now you must provide some answers (i.e. cooperate!!)

For what you sell has not been received, (i.e. time wasted)
And the sooner you come up with them,
The sooner you can leave. (i.e. the sooner you cooperate, the sooner we can try the case on the merits!!)

_________________

I saw ten thousand talkers whose tongues were all broken
I saw guns and sharp swords in the hands of young children
And it’s a hard, and it’s a hard, it’s a hard, it’s a hard
It’s a hard rain’s a-gonna fall.

This is similar to cooperation because the older lawyers are used to “talking” and holding back as much information as possible, but their “tongues are broken” because they now must change their ways in the new era of e-discovery. Also, new lawyers are like the young children with guns/sharp swords because they have a lot of power but don’t know how to use it. They could continue in the ways of older lawyers and use the holding back of information as weapons, but it doesn’t seem very smart (just as it doesn’t seem very smart for young children to have weapons).

________________

So many roads, so much at stake
So many dead ends, I’m at the edge of the lake
Sometimes I wonder what it’s gonna take
To find dignity

Attorneys certainly seem to have a poor reputation. This is especially bothersome due to the high position that attorneys hold in society. Despite an attorney’s “Creed to Professionalism” to further the profession’s devotion to the public good and to be guided by honor and integrity, I think the discovery abuses that we have studied in this course seem to indicate that attorney’s are not taking their role of advocacy in high enough regard.

With clients’ lives, property, and well-being at stake, an attorney has a duty to educate himself about the proper method with which to deal with e-discovery issues and act accordingly. Instead, clients are being short-changed by attorneys acting without any dignity. A lot is at stake, but attorneys are leading clients into dead ends over e-discovery issues. What is it going to take to encourage an attorney to take his superior role more seriously, what is it going to take to find an attorney acting with dignity in relation to this matter?

__________________

Conclusion

Justice Scalia makes a good point in Quon, we have to keep up with the changes and understand difficult technologies, or get out of the way and make room for those who can. I end this essay with the lyric that apparently even the most arch-conservative Justice on the Supreme Court admires.

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone.
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.

Come writers and critics
Who prophesize with your pen
And keep your eyes wide
The chance won’t come again
And don’t speak too soon
For the wheel’s still in spin
And there’s no tellin’ who
That it’s namin’.
For the loser now
Will be later to win
For the times they are a-changin’.

Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside ragin’.
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’.

Come mothers and fathers
Throughout the land
And don’t criticize
What you can’t understand
Your sons and your daughters
Are beyond your command
Your old road is
Rapidly agin’.
Please get out of the new one
If you can’t lend your hand
For the times they are a-changin’.

The line it is drawn
The curse it is cast
The slow one now
Will later be fast
As the present now
Will later be past
The order is
Rapidly fadin’.
And the first one now
Will later be last
For the times they are a-changin’.

8 Comments | Lawyers Duties, Search, Technology | Permalink
Posted by Ralph Losey

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