Report on a West-Kroll’s “A to Z” E-Discovery Workshop, and a Proposal for a Pure Question and Answer Format

I attended the West Legalworks e-discovery A-Z workshop in Miami last week. They are day and a half long events, so I cannot summarize the whole thing, but I can report on the parts I found most interesting. West Legalworks and Kroll Ontrack have been putting these on all over the country for several years, using different faculty in different places. I attended this CLE in Atlanta a few years ago as a care-free student, and now this one as a teacher. Like most of the faculty, I stayed for the full workshop. Both have been good events where I have learned a lot and met some great people.

The outside counsel who chaired the event, Browning E. Marean, is also the chair of DLA Piper’s e-Discovery Team. He now leads most of these A-Z workshops. Browning is an excellent teacher, who combines both dry wit and sage advice (they usually go together). He claims to have an ex-navy man’s vocabulary, which he says is invaluable in email review, but we never heard any of that. Indeed, in spite of my participation and Dilbert tie, it was a very proper Minnesota production. Browning’s co-chair was Keith D. Mobley, an attorney consultant for Kroll Ontrack in Atlanta. Keith’s goal was to make the CLE responsive to the participants’ needs. Thus, although the whole A-Z alphabet was advertised, most of the presenters tried to customize their talks on the fly to focus on the letters, the issues, that people seemed to be most interested in.

Proposal for a Total Q&A Workshop

In my opinion, and I know that Keith agrees, this is how e-discovery seminars should be run, even though it is more difficult for some presenters. In fact, I would like to try taking this approach to an extreme, and set up an event comprised entirely of questions and answers around a specified topic or topics. The presentations would consist entirely of answers to questions. Sometimes the answers would be long, sometimes short. One thing would naturally lead to another. The whole atmosphere would encourage questions, and discourage lectures. It is kind of like a Foo Camp or unconference which is defined by Wikepedia as “a facilitated, face-to-face, and participant-driven conference centered around a theme or purpose.”

This method would empower the attendees. They would set the agenda. They would get the precise information they want, when they want it. (No specific cases discussed, of course, as that comes too close to legal advice.) This approach would challenge the presenters, which is a good thing. It would keep them fresh and on their toes. It would also spare presenters the frustration of talking about issues that people are not really interested in. The different presenters would, of course, have to have varying, complementary areas of expertise so that a variety of different questions could be addressed.

Any vendors or educators out there want to sponsor such an event? If so, let me know and I will help you make it happen. With the right faculty, and the right students, who would need to have at least similar interests and backgrounds, it could be a great success. In fact, it could spawn a whole new type of spontaneous, fully interactive legal education event, one that is completely focused on the special interests and needs of the attendees. Right now, the sponsors of events are just guessing, hoping they get it right. So how about it? Send me an email and lets try it.

Rules and Pre-Litigation Triggers

The first presentation was called “Why Digital Is Different?” The lead faculty on this topic was John M. Barkett of Shook, Hardy & Bacon, who was assisted by Jim Caitlan of TrialGraphix (Kroll), and Sonya Ann Strnad of Holland & Knight. John began by reviewing the new rules, but only after first asking if people really wanted to hear about that. Somewhat surprisingly, they did, which tells me many had not attended an e-discovery CLE before.

The rules presentation was all pretty straight forward, except for one statement that I found controversial. John stated that the phrase “absent exceptional circumstances” in “safe-harbor” Rule 37(e) means “absent prejudice to the requesting party.” I am not so sure I agree with that, and perhaps I did not hear him correctly. I think the rule can also protect when there is prejudice, if routine good faith operation of an ESI system is shown. In fact, in most cases where the rule will be used as defense to a motion for sanctions, the party moving for sanctions will claim prejudice. See eg. my prior discussion of the rule in connection with Petcou v. C.H. Robinson Worldwide, Inc. 2008 WL 542684 (N.D. Ga., Feb. 25, 2008).

If proof of prejudice takes away the protection of the rule, then it provides no protection at all, which is, I know, what many people say. Still, I respectfully disagree. The rule must have a meaning. I think the “absent exceptional circumstances” language is just there to be sure the rule does not provide protection to intentional wrongdoing, gross negligence, or bad faith. It is just general catch-all language, no doubt added as a compromise by the committee that wrote this rule. This “absent exceptional circumstances” is just intended to make sure that judges understand they have discretion to disregard the rule if the facts just do not smell right for any number of reasons. In fact, I think the caveat “absent exceptional circumstances” is largely meaningless, in view of the good faith requirement already in the rule, and the host of other methods by which a requesting party can obtain sanctions outside of the rules. As John pointed out in his presentation, there are many ways for a judge to impose sanctions under the common law where Rule 37(e) would arguably not apply.

This panel also discussed the tricky issue of when a pre-litigation duty to preserve may be triggered. They made an interesting point concerning the dangers of over use of attorney work product legends on pre-litigation documents. Once you start putting those legends on emails and other documents, or otherwise claim that documents are protected from disclosure by the litigation work product privilege, then you also establish a clear point in time at which litigation is anticipated. This triggers the duty to preserve. Therefore, logical consistency demands that when you start claiming work product in connection with anticipated litigation, you should at the same time also issue a litigation hold to the impacted parties. There may be some exceptions to this. For instance, you may know that litigation is likely, but do not yet know the identity or locations of the key players, and so cannot send out a hold notice. Still, as a general rule, this is a good idea. It is hard to argue that the work product doctrine applies, but not the duty to preserve. That is a classic example of wanting to have your cake and eat it too.

The first session concluded with John describing the facts of Qualcomm v. Broadcom in detail. See: Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) (one of several relevant decisions in this case). Throughout the next day and a half, the Qualcomm case came up again and again. The impact of Qualcomm is so important that I will devote all of my next blog on it, and so will skip over these discussions for now.

Drawing Drama from the Disk

This next session was led by William F. Hamilton, the chair of Holland & Knight’s e-Discovery team. Helping him were John M. Barkett and Jim Caitlan again, along with Miami lawyer Joel B. Rothman. Bill is quite adept at teaching these subjects as he is an Adjunct Professor at the University of Florida School of Law. In this position he taught one of the first classes in the country on e-discovery. The panel noted that it was “almost malpractice not to use checklists” while also pointing out the limits of these tools, as I did in ABA Litigation Section Reacts to the Qualcomm Case and Recommends e-Discovery Checklists.

Bill had a good presentation of forensics, one of his favorite subjects and mine. Professor Hamilton is of the philosophy that forensic images of the hard drives of the computers of the key players should be done in almost every case, but especially in cases involving departed employee non-compete and trade secret cases, or in employee integrity cases. I agree with Bill that forensic images should be made in these specialty cases, but respectfully disagree about doing it in every case, just as a precautionary measure. Instead, I am only inclined to make forensic copies when special circumstances indicate there is a need to do so, such as the cases Bill mentioned, or in others when you know or suspect an employee has deleted relevant files. I have discussed my rationale for this several times, including in two of my favorite blogs, Sherlock Holmes in the Twenty-First Century and “Book ’em Danno”.

Jim Caitlan also spoke about the alternate method of preserving evidence by making a ghost copy. Here you copy all of the active files and programs on key players computers onto new hard drives. You then remove the original hard drives and replace them with new ones. The key players never know the difference, because all of their active files and programs remain in place. But you can then take the original hard drives off to the forensic lab for study – deleted files, slack space and all.

Noble Eightfold Path

Sonya Ann Strnad led the next presentation called the First Steps on the Path to Production. She was assisted by Derek A. Krabill, a technology consultant with McDermott Will & Emery, and Michael J. Ryan, a good plaintiff’s attorney in Fort Lauderdale. Sonya had a very clever presentation explaining the standard EDRM model for e-discovery using a spiritual analogy. It makes my prior sport’s analogy blog, What Game Does an e-Discovery Team Play? seems pretty base! She adopted the language of Buddhist philosophy to set forth the “Eightfold Path to e-Discovery Enlightenment.” Of course, in Buddhism, before you get into the intricacies of the Eightfold Path, you must first master the “Four Noble E-Discovery Truths.” They are, in Sonya’s words:

1. That all e-discovery is painful;
2. That the cause of this pain is cost, time, and complexity of ESI;
3. That the pain can be minimized; and
4. That the way to minimize pain is the R.26 conference.

I am not so sure that a Rule 26 Conference is really as powerful as all that, but it is a good start to alleviate unnecessary e-discovery suffering. Sonya then correctly notes that the Eightfold Path of e-Discovery, like Buddhism, emphasizes “right thinking”and “right action.” In my world, this means only preserve and collect what you really need. Do not be attached to the rest. Sonya then described the eight steps on this path:

1. Determination of duty to preserve
2. Identification of issues/key personnel
3. Issue/maintain litigation hold
4. Identify sources of relevant data
5. Preserve relevant data
6. Collect relevant data
7. Process relevant data
8. Review and produce relevant data

It was a very clever analogy. A few details that I remember include Sonya’s suggestion that the support staff of key players also be sent a hold notice. They may keep e-files of relevance that their boss does not know about. Sonya also suggested keeping a non-privileged log of all preservation and collection activities. This log can later serve as a method to prove the reasonability of your efforts, and protect you from a Qualcomm-like situation. Browning mentioned three software programs that can help you to do that: Atlas, Exterro, and Autonomy.

Sonya then discussed several landmark cases, including Metro. Opera Ass’n v. Local 100, Hotel Employees & Rest. Employees Int’l Union, 212 F.R.D. 178, 222 (S.D.N.Y. 2003). She explained that this case stands for the proposition that:

Counsel must inform clients:
-of the existence of the duty to preserve;
-duty to preserve encompasses all “documents” potentially relevant to the dispute; and
-definition of “document” encompasses hard copies and electronic documents, as well as drafts and nonidentical copies.

Teams, Costs, and Conferring

Next was my presentation on “e-Discovery Teams,” where I got a chance to show off my new Apple Keynote software, and its unique special effects. My thanks to panelists Alvin F. Lindsay of Hogan & Hartson and Derek Krabill for helping me on this. During the question period Browning wryly observed that I forgot to include an essential member of any e-discovery team — opposing counsel. It was said half in jest, of course, but his point of the necessity to communicate with opposing counsel is a good one. In many cases, greater transparency and cooperation can lead to dramatic cost savings and efficiency in e-discovery.

The next presentation was “What’s This Going to Cost?” led by Browning Marean, who says he loves to follow my PowerPoint specials. Browning showed us the spreadsheet template on e-discovery costs that he developed. His good advice was to avoid using simple brute force review, where you read everything, by using concept search, clustering and context review techniques. He said our goal should be to review 300 docs per hour, not just 10. This is possible by cluster type review where you more easily know what does not have to be read. The key to cutting costs is to reduce review time. Also, the careful use of contract lawyers can help. In his experience, contract lawyer costs range from between $43 to $150 per hour, per reviewer. In India, the price per contract lawyer can come down to between $25 to $35 per hour, but Browning does not know of any client who will use Indian lawyers for review. When contract lawyers are used, even domestic ones, top end attorneys should still be involved in review to cull down the data universe, and focus on the key subjects, players, and language.

As a practice tip, Browning suggested the request of production of the PowerPoints that might pertain to the dispute, especially ones sent to the Board. They are usually simple enough for anyone to understand and sometimes have startling admissions. Browning also suggested the use of checklists and established procedures as typically employed in project management software. The use of such tools is largely driven by the fear of malpractice. It is all to easy to forget to do something. Also, Browning pointed out how important it is for law firms and corporations to have a strong internal education program. This e-discovery training should be for both litigation and transactional lawyers. Transactional lawyers need to understand litigation-hold duties too, because they see the problems that are brewing. By the time a dispute gets referred to a litigation attorney, the time for a hold may be long past.

The next session on “Meet and Confer” was led by Joel Rothman, with strong assistance by Ervin A. Gonzalez, a Miami plaintiff’s lawyer and member of the Florida Bar’s Board of Governors, and Alvin Lindsay. The panel began by quoting Judge Waxse who likes to say that: “Lawyers are like exotic particles. They change behavior when observed.” Judge Waxse, a District Court judge in Kansas City well known for his e-discovery expertise, purportedly orders lawyers who cannot reach agreement in Rule 26(f) conferences to go back and hold the conference again, but this time to videotape the whole thing. If they still cannot reach an agreement, then they are supposed to come back with motions and file the video tape. So far, no one has ever returned to file a motion with videotape. This always resolves the problem.

The panel agreed that complex cases require a series of meet and confers, not just one meeting. They call this the Big Bang versus Serial approach to meet and confer. They also suggest that you send an agenda in advance, and that you come to the meeting with a very specific and detailed plan. Sometimes you may even want to bring an IT expert, if you need it. They suggest that you consult with the expert if and when tech issues come up, but that you do so outside of the room. They also suggest you always discuss a preservation plan in order to protect your client. This allows you to set up waiver and estoppel arguments.

Mike Ryan added that it is important to build credibility at the meet and confer. He thinks that is the most important aspect of the conference. Everyone’s credibility will be tested, so be careful what you say and what you promise. To that end, the panel suggested that you bring a note taker to make an informal record of what is said and done.

Collecting and Processing

The next day began with “Bringing in the Bytes” led by Jim Caitlan, with assistance by Derek A. Krabill, and Robin A. Peterson, a top paralegal and e-discovery expert for Baker & Hostetler. Jim calls the e-discovery experience a kind of “body cavity search” of the company to try and locate all relevant ESI. He points out that it is easy to make mistakes and miss ESI, and then later be accused of spoliation. He recommends that you start the search process by educating in-house IT as to what needs to be accomplished and why. You need to explain the Rules and the problems.

Derek said that in his practice he sends out a general questionnaire first to corporate IT, and then has a phone conference with them. He says the call is almost like a deposition, but friendly. Derek observed that IT tends to provide information that minimizes their work, and so they have to be carefully supervised. In Jim’s experience, a group meeting with multiple IT personnel works best because they tend to be more committed and show off their problem solving abilities to their peers. He thinks that you are more likely to come out of a group meeting with a detailed plan of action than you are a series of one-on-one meetings. Jim suggests that the meeting be facilitated by a tech-lawyer of the e-discovery consultant.

The panel emphasized again the importance of documenting all decisions throughout the e-discovery process. In this way, you can later defend your actions as reasonable in situations where a mistake is made, ESI is overlooked, etc. Jim stated that his company, Kroll, always tries to preserve backup tapes, but I suggested that is not what the law requires. In my opinion, you only have to preserve backup tapes if there is some reason to believe that relevant ESI may only be available there. I pointed out Judge Scheindlin’s prior holding in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) on that, as I have done several times in this blog. See eg. Rule 37 and the Supreme Court on Document Destruction and Should a Litigation Hold Include Backup Tapes? But See Toussie v. County of Suffolk, 2007 WL 4565160, at *8 (E.D.N.Y. Dec. 21, 2007). Toussie incorrectly cites to Zubulake to support the position that “the law is now clear that any backup tapes containing the documents of a key player must be preserved and accessible”. This incorrect statement of the law was recently repeated in Treppel v. Biovail Corporation, 2008 WL 866594 at *12 (S.D.N.Y., April 2, 2008) which for authority cited and quoted Toussie. 

The next presentation was called “Data Filtering, Processing, Review and Production: How it Works and Why You Need It” by Sonya Strnad, Jim Caitlan, and Michael Ryan. Sonya noted that between 65% to 90% of data is usually removed during the culling/de-duping process. This is a very important statistic. In my view we all need to be much more aggressive in ESI culling in order to get control of run away e-discovery costs. The panel had many very good practical tips in this area not previously mentioned, such as:

1. keep a good accounting to be sure all files are processed;
2. know what kind of files cannot be handled by the processing software you are using, and be sure the software creates exception reports to advise you of any files not included;
3. ask  your vendor to tell you what types of ESI can and cannot be properly processed by their software; and,
4. when projecting the time it will take to accomplish certain tasks and make production, be sure to build in time to deal with currently unforeseen problems because some will always crop up.

Jim responded to a question as to when concept search software should be used. He said that it becomes cost effective when at least 20,000 to 30,000 documents are involved. Then, concept searches and the clustering of documents can facilitate review enough to pay for the expense of the extra software charges. Jim stated that Kroll’s product, by which I think he meant Ontrack Firstview, is relatively inexpensive to use for that size of review, between $2,000 to $3,000. The extra expenditure should more than pay for itself in reduced review time, and it will uncover additional relevant data. Along those lines, Browning reported on a new software search tool by Synergence that allows you to create a synthetic document with language that you would like to find. It then goes out and searches for the smoking gun or silver bullet that you would like to find in the document set. You can also do the same thing with actual documents you have already found that are the most relevant: the “hot” documents.

Sonya proposed that you try and reach agreement with the requesting party to only produce near-duping documents, and to allow the receiving party to request the screened near-duped documents later upon request. Alternatively, the producing party can dedup and then repopulate and produce. Browning observed that this would be called de-deduplicating, and is the electronic equivalent of paper document dumping. It forces the requesting party to also use deduping software, or incur excessive costs to review all the duplicative documents. For that reason, a requesting party should want to avoid repopulation, and should be pleased to receive a deduped set, but often they do not. They tend to be suspicious that relevant documents have been withheld. Requesting parties should be told about the deduping process in advance of production. Then with disclosure, they should agree to the mutually beneficial process, especially if they have the right to go back and request specific deduped documents if that is later needed.

Sleeping Well at Night

The closing presentation by John Barkett was entitled “What’s Keeping Us Up at Night?” He was helped by Jim Caitlan, Bill Hamilton, and Keith Mobley. John agreed with my prior assertion on the law governing backup tapes, that there is no duty to preserve backup tapes, unless you know that relevant data may only exist there. But he correctly noted that this requires quick investigation into the key players procedures, to see if there have been any deletions of ESI that might require backup tape preservation. This need for rapid lawyer and client response keeps a lot of us up at night. John also reviewed his recent Ethics paper and a host of relevant case law. John concluded by noting how the proposed amendment to Rule 502 (Evidence Code regarding privilege waiver) was passed by the Senate in early 2008. Here is the text of the proposed Rule change:

PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure made in a federal proceeding or to a federal office or agency; scope of a waiver. – When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent disclosure. — When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed. R. Civ. P. 26(b)(5)(B).
(c) Disclosure made in a state proceeding. — When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling effect of a court order. — A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.
(e) Controlling effect of a party agreement. — An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling effect of this rule. — Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if
state law provides the rule of decision.
(g) Definitions. — In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

John predicts it will be passed by the House soon, and will go into effect before years end in 2008. I certainly hope he is right about that. It should help on the privilege waiver problems that worry many an e-discovery lawyer.

Still, the best advice on how to avoid sleepless nights is to study what Qualcomm’s lawyers did in the Broadcom case before they got fired and sanctioned, and then do the opposite. Like the chair of the FTC’s e-discovery team, David Shonka, said recently at the Harvard Club lecture, it’s really quite simple: “don’t lie, don’t hide things, and don’t make promises you can’t keep.” To that I would add, if you are in doubt about something, seek the advice of an independent counsel who not only has high integrity, but also strong knowledge of the governing rules of ethics. For instance, in my firm we have a chief ethics officer. The Florida Bar also operates an anonymous ethics hot-line for lawyers to seek advice. Perhaps your state has something similar? It is a good idea to consult with reliable sources such as this whenever you are in doubt.