This is a continuation of my interview by Karl Schieneman on ethics in e-discovery. If you have not already read Part One, skip down to the preceding blog, or click here, and read it first.
KARL: Okay. Let’s go to another rule here. Another of the client duties – diligence. Rule 1.3 on diligence says: A lawyer shall act with reasonable diligence and promptness in representing a client. How do we get in trouble here in e-discovery with that?
RALPH: Well, it’s a big one. I’ve got to credit New Jersey and their local rules for emphasizing this many years ago when New Jersey began to require counsel to talk right away with the IT department of the client to make sure that preservation holds are properly implemented, the auto deletion functions are turned off. The New Jersey rule also requires counsel appearing in cases in New Jersey to talk right away with the key custodians about making sure their evidence is preserved.
Then Judge Scheindlin in Zubalake in her opinion in 2004 picked up on that theme out of New Jersey. She created what I and others are now calling the Zubalake Duty. You’ll see that written about in my blog and in my books where, in her words – she says, “outside counsel are required ‘to make certain that all potentially relevant information are identified and placed on hold.’” So, she’s actually putting that duty on outside counsel, not just the client, but on outside counsel, to make sure that the relevant information has been placed on hold.
This is controversial to many people who think this shouldn’t be an outside lawyer’s job, that diligence shouldn’t include requiring the attorney to be sure everything is placed on hold. But under the Zubalake Duty, you are at least required to have the conversations and to give the advice. Now, if the client doesn’t follow your advice, you’re probably not going to be sanctioned for that. But on the other hand, you may sometimes be in a Qualcomm situation where if the client just blatantly doesn’t follow your advice – and, by the way, I’ve never had this happen to me, but in theory it could happen – then, what you’re supposed to do is withdraw. <Ralph’s secret thoughts: Well, come to think of it, I have been in that position before, or close to it, and I have withdrawn, but not over preservation issues, per se.> That is because you’re not supposed to condone evidence being deleted. <That’s a big Duh!>
Due diligence requires follow up with the client to tell them about their duties, talk to the right key people, explain what they have to do to make sure that relevant evidence isn’t deleted. This is all supposed to happen quickly, which makes it so darn challenging. … So this is another big problem — the duty of diligence has become a huge challenge, particularly in e-discovery in connection with preservation.
KARL: You know, I almost feel like I should stop for a fictitious sponsor statement here. <Oh no. Here it comes, the wine story again! Time to do a quick check of my email.> A couple of years ago I came up with a bottle of wine tied into Zubalake called the Fourth C. There were three Cs in Zubalake. Jim Daley, a good friend of mine, called it the Zen of Zubalake. You have to Communicate with your IT people, you gotta Coordinate you know the stopping, the deleting, etc., and then you gotta Comply with the order. When you mess those up, there’s always Cabernet, which is my Fourth C. We got Judge Scheindlin and Laura Zubalake to autograph the bottle. Used to bring them around to conferences. I still think there’s a role as a tool for a good bottle of wine in e-discovery. Calm everyone down.
RALPH: Yeah…. <Wine as diligence? Not so sure about that one Karl.> and you know, Zubalake is kind of old news. <I am so sick of saying the Z-word.> Okay, it was five years ago this came out, but unfortunately the problem is still there.
It’s still a huge challenge and I would like to mention a more recent case, though. <Anything but Zubu!> One that just came out, Van Alstyne v. Electronic Scriptorium. Great name for a defendant, huh? <What is a “Scriptorium” anyway?> This is a Fourth Circuit case. So now we’re talking an appellate circuit case which came out on March 18, 2009. What’s interesting about this is the attorney here just took emails that were given to him from his client without doing the diligence of asking: “Where did you get those emails? How is it you came to have the emails of this employee who is suing us now?” Because they were very personal, private emails. The attorney didn’t really do the diligence required to find out – at least I assume he didn’t, and there’s no indication in the opinion to indicate that he knew that these emails were in fact hacked from the employee’s private on-line account. <I have written about this case before.>
This is a crime and it subjected this defendant company to a punitive damages award even though there was no proof of any actual damages from having the employee’s private email hacked into. We all know that here the client was being way too diligent. He figured out a way to get into the Yahoo! Account. He knew or figured out her user name and password and he stole her email. Then just turned it over to his attorney, who blithely said, “oh, okay, thanks,” and used it as surprise on a cross-examination of her deposition. So this is something you’ve got to understand, the evidence and where it’s coming from. This is just a different kind of example where the attorney didn’t do his homework and in fact ended up using evidence that was procured in a criminal manner by his client.
KARL: All right. That’s – that’s – it’s scary stuff. I’ve actually encountered something similar. You know, when you know e-discovery well, you sometimes have friends that ask you questions and in the world of small business, lots of bad things can happen. So your diligence is right.
RALPH: It is, and those of us that have been around it, I mean we know, it’s not that hard really to hack into somebody’s email account. But don’t do it and don’t let your client do it! There’s laws governing these things that need to restrain lawyers as well.
Confidentiality of Information
KARL: Yeah. Well let’s go on to Rule 1.6 – Confidentiality of Information. This falls on the professional duty side of the equation. A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Okay. How do we get in trouble here?
RALPH: There’s two things that are really hyper about that. One is, we haven’t talked about the duty of cooperation yet, but it kind of dovetails in with this duty of confidentiality, particularly in e‑discovery, where sometimes we’re going to have to disclose to opposing counsel things that we used to keep secret as work product. <Nothing critical mind you, but stuff needed for CYA.> It used to be kept confidential how you would do your searches. The key words that you might use to search through your own client’s data. That typically was something you just wouldn’t share with the other side. None of their business. That’s my work product. I’m going to keep it confidential. <Afraid it would give away your theory of the case; more likely it would give away how lame your searches were.> The other thing is keeping client’s secrets. <Now those are the important secrets.> In a minute, I’ll explain how both of these confidentiality duties kind of dovetailed together in the Victor Stanley case.
But the other duty is to not produce to the other side attorney/client communications. It’s the client’s privilege, as you know, to keep things secret. The client typically instructs you, the lawyer: “Not to turn over our secret emails to each other; I don’t want to waive that privilege; I don’t want the person who sued me, for instance, to see what we’ve been talking about in connection with this case or in connection with anything.” So part of e-discovery, one of the most expensive parts of e‑discovery, is to review documents that have already been found to be relevant and to remove from those documents the attorney/client communications. These things are protected by attorney/client privilege, or all other kinds of privilege. Then also to review and protect documents that are confidential, that might just be trade secrets of your client and to protect them in various ways.
Focusing in on the duty to keep the communications between an attorney and their client secret, which is what this ethical duty is talking about, is a very important duty. This came to head in the Victor Stanley v. Creative Pipe case. Everybody that’s an e‑discovery junkie knows this one by Magistrate Judge Paul Grimm. It was decided almost a year ago now, May 29, 2008. If you haven’t seen it, you’ll find it discussed in my books and also in the blog. It also pertained to the reasonable diligence requirement, in that the people doing that final review of relevant documents to remove privilege, they missed over 300 privileged documents and they produced them to the other side. Their duty to keep things confidential was breached at that point. They were then invited to explain to the court and the other side whether they conducted a reasonable search. If they were able to prove a reasonable search, they might have been able to prevent the privilege from being waived.
That’s where the other confidentiality concerns reared their ugly head; they in effect said “Nope, we’re not going to tell you what our search terms were. That’s our work product. We’re keeping that confidential. We’re not revealing it.” So, faced with that scenario where 300 documents were produced and they claimed it was accidental, but they wouldn’t explain what they did to try and catch them at all, Judge Grimm found that there was a waiver of the privilege. He did not find that there had been a quality assurance testing program. Basically, he didn’t find that what they had done to try and protect the confidentiality of their client’s information was reasonable. So that was a duty on the shoulders of the attorney which they didn’t discharge, and here it cost the client the loss of their privilege.
KARL: I should throw a little plug in there. I haven’t set the date yet, but Judge Grimm has agreed to do a pod cast talking to one other judge. Want to do something on sort of from a 10,000 foot level search and retrieval from the judge’s perspective. So I’ll keep you updated on that.
RALPH: Well, yeah, having Judge Grimm talk about it would be great. You know, Rule 502, the new evidence code, has addressed some of these problems to a degree, and maybe taken some of the pressure off us, but it is still, I think, one of the fundamental problems we have in e-discovery, and that is doing an affordable privilege review to try and catch these things. I’m sure you’ll have other shows just dealing with Rule 502. That is a big help.
Expediting Litigation by Strategic Cooperation
KARL: Okay. Rule 3.2, Expediting Litigation is another rule that you’ve thrown into the cocktail mix here. A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. How does that relate to e‑discovery?
RALPH: It’s key. I mean, that’s the core ethics rule behind The Sedona Conference Cooperation Proclamation, which if you haven’t heard of it, go to TheSedonaConference.org website, download and read it. It’s being signed on to by judges everywhere. It is also – speaking of Judge Grimm again – the core message in his case Mancia v. Mayflower Textile Services, which came out in October of 2008. <See my prior blog on this important case.>
This is yet another key case to understand this whole business of keeping the cost of e‑discovery down, which is a core problem. Part of the reason e‑discovery costs get out of control is people lose track of this ethical duty we have to move things along. That really is in the interest of your client. Let’s stipulate to things. Let’s have more transparency and cooperation. Let’s stop this old game of hide the ball. It’s never been ethically allowed, but we all know it’s gone on for years and years.
Maybe in the paper world where people were competent, that wouldn’t blow the client’s budget out of the water. But nowadays, when you start playing hide the ball and start playing games in e-discovery, and start trying to be obstructionist, when you start filing boilerplate objections to everything and you don’t cooperate, before you know it, you’re going to have the tail wagging the dog. You’re going to have e‑discovery be the most important part of your case. It’s going to cost you hundreds of thousands, sometimes millions of dollars, just to get involved in sorting out the e‑discovery quagmire and the confusion in the disputes. That’s not what litigation is about.
Litigation is about the merits of the case. Discovery is just a way to get to the truth to then argue about the merits. So my message, and the message of The Sedona Conference, is let’s cooperate on getting the information on the table. Let’s stop trying to play games and one-upmanship and fighting over that. Let’s then fight on what the facts mean. Let’s fight on what the law is. There’s plenty of room for arguments and disputes, but let’s not fight over what should the format of production be, metadata this, metadata that. I mean, most of these arguments that I see in cases are totally unnecessary. You have just run up a bill needlessly on the clients. They think you’re being a vigorous advocate, but really you’re not. You’ve lost track of your duty to move things along, which is by the way, Federal Rule of Civil Procedure, Rule Number One: quick, just, inexpensive adjudication. That’s what we need to be doing. E‑discovery has got to stop being the whipping boy against this and the way to do it is by cooperating, which is why I’m such a strong believer in what Sedona is doing in that area.
KARL: Yeah, we did a show with Richard Braman who heads The Sedona Conference on the Cooperation Proclamation. It’s interesting stuff and certainly critical.
RALPH: You know, I hear some people say, oh, well, that’s wimpy, But the truth of the matter is, this is not just rolling over and giving what the other side wants. This is mutual cooperation. This is what I call strategic cooperation to benefit your client. You have got to pick your battles. One of your battles shouldn’t be over e‑discovery. The battle should be on the merits of the case. The people that think this is just a mistake to cooperate, they’re not really getting it. They’re part of the problem, they’re running up the cost of e‑discovery. This is something that we all have to kind of move beyond our old mindset. There’s nothing wrong with cooperating and in fact, the ethics and the rules require it.
KARL: We did a really nice show with Ariana Tadler last week on the plaintiff perspective. She’s a prominent lawyer at Milberg and one of the few really well known e‑discovery experts on that side. She talked about the meet and confer, about how she goes in with letters and what we’re looking for and sort of an olive branch essentially to try to get the case going the right way. But it’s tempered with healthy skepticism at the same time, you know, because it doesn’t work all the time that way. And the cases where it works are far better, she said, in terms – for both sides.
RALPH: Well, I always say it takes two to tango and you know, if one side won’t cooperate, that doesn’t mean that you give and all they do is take. If they don’t give back and don’t cooperate, you’ve got one clear solution. You go to the judge. You go to the judge quickly and right away. That’s what all of the judges say they want. So, you know, if you get one side that won’t cooperate with you, you do your best, you make your paper record, you make it clear you’re wearing the white hat, and you take it to the judge. You’re going to find out those judges are going to insist on cooperation. There’s no tolerance in the federal bench for this at all.
Candor Towards the Tribunal
KARL: That’s a good lead in to the next rule, candor toward the tribunal. Rule 3.3, which says in various parts and subparts (a): A lawyer shall not knowingly (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . . or (3) offer evidence that the lawyer knows to be false . . . . So those are key to your position in this area. How does that impact e‑discovery, Ralph?
RALPH: Well, we’ll come back to Qualcomm again because Qualcomm is bigger than Zubalake at this point. <Thank God for that, as we are all so sick of Zubulake.> This is a lesson case for the legal profession at large, that just happens to be in e‑discovery and it’s ongoing. Although Qualcomm and Broadcom settled their series of lawsuits they had all over the country – they finally settled that just a few weeks ago for a big ticket being written from Qualcomm to Broadcom. But nevertheless, the lawsuit in San Diego district court, even though it’s over and the jury ruled against Qualcom over a year ago now, it continues for the question of what kind of sanctions are appropriate against the outside counsel who represented Qualcomm.
There will be a trial on this we’re told later this year, probably near the end of 2009, to assess the blame. Who’s to blame for the false statements being made to the judge, to the jury, to the opposing counsel about the email of Qualcomm, about the denial that was made by Qualcomm from the moment they filed suit, that they had any information concerning their cooperation in this organization, technical organization concerning their patent. They basically tried to hide the elephant. <Almost got away with it too. Makes you wonder how many times they pulled this kind of “evil magic” in the past.> They responded to requests for production on numerous occasions by saying “no, we don’t have any responsive email concerning this.” They had deposition testimony in advance of trial where everybody toed the party line: “nope, we didn’t do this, we didn’t do that.” Then, it turned out there was one honest witness at trial, into like the second week of trial, who said “oh, yes, I think there was an email or two on that. I happen to remember a couple.”
Because of that one honest witness – the jury by the way ruled against Qualcomm very quickly after that – because of that testimony, which was contrary to all the representations that had been made by Qualcomm before and during the trial, the district court judge said in effect “I want a hearing and I want to find out if there were intentional misrepresentations made by lawyers to the court, made to the jury, made to opposing counsel.” That’s what triggered this investigation into the conduct where in the judge’s words, the judge is convinced <among other things> that he was lied to at a side bar conference during trial, … convinced that lawyers tried to hide evidence and were not truthful.
So this is the core thing. The judges have to understand, and they have to be confident, that when lawyers tell them things, it’s the truth. If they can’t trust the lawyers to tell them the truth, who can they trust? That is the highest duty that we lawyers have, is to be honest to the judges. When you don’t do that, you know, you deserve the rebukes, you deserve the sanctions, you deserve the ethical things. This is the core value – telling the truth. Lawyers telling the truth to judges, lawyers telling the truth to each other and being honest in their discovery. That’s why this is a core message for litigation across the board, that … our system of justice won’t work, if people are lying. Now, litigants may lie, there’s perjury for that. Maybe, you know, that happens. <We all know it happens all of the time.> But lawyers should never lie and that’s basically what this rule is about, that’s what Qualcomm is about.
KARL: Okay. Let’s go into the final rule that we’ll discuss on this, Rule 3.4, which is fairness to opposing party and counsel. We’ve touched a little on this: A lawyer shall not (a) unalwfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. Then in part (b): in pretrial procedure make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party . . . . So how does that play into this issue, Ralph?
RALPH: Well, we’ve already kind of talked about it. This is the duty to cooperate; this is the Mancia case and Judge Grimm; this is more of the ethical underpinning of why it is you need to cooperate. You’re required by ethics, by being a lawyer, you’re required to cooperate on this level. Unfortunately, we still see happening, time and time again, lawyers are not discharging their professional duties.
There is another case, not as well known, but I would point the listeners to. It demonstrates non-cooperation, not following this. It’s called U&I Corporation v. Advanced Medical Design, 2008 WL 821993. Again, this is one coming out of Florida, which is why I happen to know about it, dated March 26, 2008. <It is an Akerman Senterfitt case where we obtained a sanctions award against a very uncooperative plaintiff.> This is an important case because it shows how a defendant can insist on cooperation from the plaintiff that was suing them here. When they don’t, you can get sanctions. …
Just one brief quote from the Magistrate Judge, Elizabeth Jenkins, who says, “It is not the court’s role, nor that of opposing counsel, to drag a party kicking and screaming through the discovery process.” I think that’s an important quote. You know, if you can show that to the judge, that that’s what you have had to do because they’re not cooperating, they’re not being forthright, they’re basically fighting you every inch of the way, you will get relief. If you apply to the court for relief, cite to the U&I Corporation case, cite to Mancia, point out the duty to cooperate, and you can stop this. Because unfortunately, you know, a lot of people don’t – didn’t get the cooperation memo. In the real world, most people are still not cooperating. So that’s why it’s important to know about these ethical requirements, know about these cases where lawyers are having their hands slapped when they don’t fulfill their duties.
What’s It All About, Alfie?
KARL: How do these – I mean, you know, there are these six rules and I really liked your quadrant. I’m going to attach your blog, your description in a description of the show, so that people can link to it. But, how do these rules sort of compete with each other. I mean, who wins, the client or the professional duties?
RALPH: <Geesh, that’s bad choice; better elevate this to a big picture “Alfie type” question.> They have to be brought into balance. Because a client doesn’t really win when a lawyer is fighting over everything with opposing counsel. Now, the client might at first get a few rah, rahs out of that: “Oh boy, yeah, he’s fighting for my side!” But you know what? After he starts getting the bills for this month after month, year after year, it stops being so exciting to the client. We all know that that’s not really in the client’s best interest to be fighting over everything. <Only the lawyer wins then, the client loses, whether they win the case or not.> That kind of vigorous advocacy is something that even the biggest corporations can’t afford. They need to cooperate. Then the client will win. That’s the point of all of this.
We’re here in the legal profession to represent parties that are in disputes, to give them legal advice. So the winner on all of this has always got to be the client. They win when the rules of ethics are followed. That’s how they are designed – the ethics duties are designed to improve and maintain the quality of our system of justice. The system of justice is not there for lawyers. It’s not there so we’ll have a job. It’s there so that justice will be done.
That’s getting on the pulpit for a little bit, <well, o.k., maybe a lot> but the winner should always be the people. <That includes companies too, a fact that some lawyers forget.> That’s contrasted with the old days of, you know, trying to resolve disputes through violence or self help. <My personal favorite is trial by drowning, kind of like water-boarding, but you die.> Now we can turn to a system where the truth will come out and just results will be attained. That’s why we’re all here – that’s what we’re really doing – that’s what the goal of everyone is. <Although, I swear it sometimes looks like a few lawyers are just in it for the money, but I could be wrong.> So, I think the people, the clients, will be the winners, once we start following the rules of ethics and have that end-game goal in mind.
KARL: That was as good an answer as I could have expected from that poorly framed question. I’m almost thinking of my ethics class in law school and Judge Weddick here in Pennsylvania is a well known state court judge here, teaches it. And, you know, he would take one side or the other, and we’d only attack one rule at a time. I threw six of them at you. Almost impossible. But you’re right, I mean, there’s – this is a balancing act, but really there are some solutions in here. Let’s try to hit on a couple of these solutions. Try to wrap this up in a couple of tips for the listeners.
RALPH: We might as well end on practical, positive stuff. <Assuming, of course, that I can climb off of my high horse for a second!> Right now I’m talking about a three-fold solution, trying to keep it simple. <Tomorrow, it may be a five-fold solution; whatever.> So, number one is e‑discovery teams. That’s why I call my blog the e‑Discovery Team. The message there is that lawyers, techs, and management need to all work together as a team. That’s part of the way to overcome the competence problem is get a tech – not tied to the hip as Craig Ball likes to say he wants to avoid – but get a tech on your team. Learn to collaborate. Stop being the — you know <arrogant jerk>. Perry Mason, he used a detective; today’s lawyer needs to have a tech. <Paul Drake with a pocket protector?> They need to have a geek that they can work with. So that’s part of the solution, form an interdisciplinary team. That’s number one.
Number two is cooperation and be transparent in what you’re doing. Cooperate with the other side, fulfill your duty of disclosure, take that seriously; save the arguments for the law. We’ve already talked about that. But that is the second core solution.
And then the third part we haven’t talked about, but that’s what I call calibration and metrics, which includes using the new technologies. Use the latest methods in order to tackle the needle in the haystack search problem and to keep track of your information and manage it better. This is the kind of thing that Jason R. Baron and the TREC Legal Track addresses. <See eg. my prior blog on Jason Baron’s work, the webs for the National Institute of Standards and Technology TREC Legal Track, the general TREC conference.> He’s just come out with a new paper, Sedona has, on quality control and metrics, which I’ll blog about soon. I think it’s an excellent guide to help people on this – this use of calibration and numerics and metrics as part of search.
A lot of groups are working on this. I was just presenting with George Socha of the EDRM.net Group who now has an EDRM search guide available on their website, which provides more information about calibration metrics, how to do so sampling and that type of thing. So there’s a lot of ways to get information on this subject. I urge everyone to learn a little bit more about how to do quality control, and how to do metrics, and to basically use numbers as your friend to keep the price of e‑discovery down. <Did I really just say that? “Numbers as your friend.” Brother, even I think I’m a nerd.>
KARL: Yeah, we’re doing a show coming up with another one of those people who’s in that group. Herbert Roiblatt is going to be doing the show and Kershaw and Patrick Oot are also talking about doing a show on this. So there’s no shortage of people that are studying this that are willing to provide some information.
RALPH: Thank you for mentioning them. That’s the other group, Anne Kershaw’s group, E‑Discovery Institute.
So that to me is the core problem, and the solution to it is using statistics and sampling and just getting a more disciplined handle on how much we actually review. In other words, how to cull down things a lot. So that’s the third prong of the solution. Use teams, cooperate, and figure out how to do search better by using some sort of metric analysis.
KARL: I don’t get to say this very often, but that’s what brought me back into the field is focusing in on that specific issue. It’s just – if you’ve lived off of the other model, which is throwing lots of bodies at the problem, you realize just how inefficient it is. And then when you study the studies, the Blair Maron case and anyone that looked at that sort of brute force based on people, it doesn’t work and it’s very, very expensive. You know, there are tools out there. It’s really fascinating, and it ties right back into your first thread about people learning new skills and working together as a team. It’s interesting how this all fits together.
RALPH: Well, thank you for having me on the show, and thank you to all the listeners <and readers> for having the patience to hang in there. I know we went on and on, but it’s important stuff and I’m glad to have the opportunity to talk to you about it, Karl.
KARL: It is great. Thanks again, Ralph. For those who want to see a complete list of shows, go to www.esibytes.com or – and what we say here at the show is come to ESIBytes to learn more about electronic discovery before ESI bites you back. Thanks again, Ralph.