The is part two of my report on Georgetown’s Advanced eDiscovery Institute CLE last week. In part one I reported on the primary buzz: Most Advanced Students of e-Discovery Want a New CAR for Christmas. But there was a lot more chatter going on than predictive coding talk. The second biggest topic was the well deserved confirmation of Paul Grimm as a United States District Court Judge. He had been serving the country as a Magistrate. The idiots in Washington finally stopped playing games and confirmed President Obama’s nomination of one of the most qualified persons in America to hold the federal judge position. It was high fives all around about that hot off the press news when the conference started. Now Congress, how about confirming all of the other judges whose nominations are being held up for spite and nonsense? We need the judges and we need them now! Quit holding the judicial branch of the government hostage to your stupid fiscal cliff partisan politics games. While you are at it, give all the judges a raise. They deserve it.
The Wish List and Judge Scheindlin’s Bomb
The second biggest topic at Georgetown was the new rules and Judge Scheindlin’s Bomb. That is how the conference ended in shell-shock. It also raised some personal issues for me that I have not shared before, as I did not want to come across like a sore loser. But now that I’ve won, I will tell all, or nearly all. First, let me set the stage at Georgetown, at the Ritz of course.
In the closing session of Georgetown all of the judges took the stage for one last time to answer questions. The moderator was Ariana J. Tadler, who did a great job as usual. The judges who sat on this last panel were the honorables: John M. Facciola; James C. Francis; Lorenzo F. Garcia; Paul W. Grimm; Nan R. Nolan; Andrew S. Peck; Xavier Rodriguez; Shira A. Scheindlin; and, Craig B. Shaffer
Ariana started it off by asking a question for all of the judges: If could change or create one Rule what would it be?
Here are my notes of how they each answered, and I will save the best, the real shocker, for last:
- Judge Nolan – would add cooperation to Rule 1.
- Judge Peck – get lawyers to understand existing proportionality rules and case-law; read and understand Judge Grimm’s Mancia v Mayflower.
- Judge Rodriguez – use Rule 502 more and properly.
- Judge Grimm – change scope of discovery in 26(b)(1) on initial disclosures. He would like the rule to be revised to require mandatory disclosure of documents that a party intends to rely upon to prove case, not just defend. He also advocated for changing the outdated definitions of relevancy in the rules. He also observed that many attorneys do not know what documents they need to prove their case, a theme that many judges piled on about and agreed with. They are all correct in my opinion.
- Judge Francis – allow parties to get preservation guidance before suit.
- Judge Facciola – he has read his last damn privilege log. He has made some calls to Brooklyn to have the software functions killed. Software is the problem. Mad at attorneys who make frivolous claims. Rule should sanction lawyers for bogus privilege claims. Senior lawyers should have to read the log and certify accuracy.
- Judge Garcia – 502 – the courts are not interpreting it right and still allow waiver of privilege. Refers to Judge Grim’s article on the failure of Rule 502. Judge Garcia would clarify the rule to make certain no waiver without any conditions.
- Judge Scheindlin – disagrees with Judge Grim regarding changing the scope of relevancy. She is disappointed that the Rules Committee did not have the courage or vision to write a rule on preservation. (Yes. Those were her exact words.) She would write a clear rule governing preservation instead. The Committee only looked through the lens of failure and addressed sanctions only. (Again a quote.) She said repeatedly that she was very disappointed. She said the Committee should have given comfort to litigants by guidance on preservation. She said what is needed is national guidance on preservation, instead of ad hoc case-law that varies by jurisdiction. She also said it was too early to change the rules, that there had not been enough time since the last amendment in December 2006.
Wow. Her comments were a bombshell. No courage? No vision? A very disappointing failure? Everyone’s jaws dropped after those attacks of the Rules Committee’s work. Most everyone there knew that the Rules Committee work was led by Judge Grimm. He was sitting right next to Judge Scheindlin. He seemed stunned by this public rebuke. Welcome to the big leagues of District Court Judges. See below for more detail on the Rules Committee proposal that Judge Scheindlin attacked.
Judge Grimm did not say anything in response. He was the picture of self-control, just as you would expect from a retired Army Captain. He had been under fire before. A few of the other judges outside of New York jumped to the defense of the Committee (and thus Judge Grimm). One even pressed Judge Scheindlin on how such a rule on preservation would be worded. To me they seemed outgunned by Judge Scheindlin who was a leading member of that Committee for many years. She was adamant in her argument and gave no ground, but of course smiling and very polite at all times.
The Story of My Search for Relevance
Open disagreement between judges on important issues like this is very, very, rare, and somewhat refreshing, although I am not quite sure of the purpose and will not speculate. Moreover, I must disclose that I am biased in Judge Grimm’s favor. I am biased because I have been advocating for a change to the outdated relevance definitions in the rules for years. I also advocated for mandatory full initial disclosures. Losey, R., Rethinking Relevancy: A Call to Change the Rules to Narrow the Scope of ESI Relevance (Jan. 21, 2011). I later converted my Rethink Relevancy blog into a more formal article, Rethinking Relevance: A Call to Modify the Rules of Discovery (February 2011). I then circulated the article to a few hundred attorneys at CLEs, etc., including a couple of Rule Committee members. I also included a version of the Call to Modify the Rules essay in my book, Adventures in Electronic Discovery (West Thomson Reuters, 2011). Perhaps a few thousand more lawyers and judges read it there. I really do not know, as I never received much feedback on this article or my rule change proposal. Still, I was then, and remain, convinced that we have to turn down the spigot of relevancy to keep from drowning in a flood of marginally relevant ESI.
Earlier that day at Georgetown I learned from another panel for the first time that the Rules Committee was about to propose a change to relevance (Rule 26(1)), and to sanctions (Rule 37(e)). I knew the Committee had been considering a revision to Rule 37(e), but the change to the definition of relevance and scope of permissible discovery came as a complete surprise to me. I did not even know they had finished their work. Apparently many other people were surprised by this announcement too.
Before this Georgetown surprise I thought that I was the only person pushing to change Rule 26(b)(1). I had seen no other essays on that. All the hoopla was on sanctions and adding provisions to the rules of procedure to govern preservation.
I was never too impressed by the push for preservation rules because I thought that preservation was a question of substantive law, not procedure. Plus, I did not think preservation was as big a problem as many others did.
I thought, like everyone else, apparently Judge Scheindlin included, that the Committee was just working on preservation and sanctions rules. I had no idea the proposal to narrow the scope of discovery by redefining relevance had gained any traction with the Committee. I had assumed my proposal to address relevance as a top priority had been ignored. In fact, I was discouraged and had given up efforts to try to turn down the spigot by an express rule change. I had instead been focusing on the doctrine of proportionality to do that.
I had good reason to be discouraged. A few years ago, just before I wrote these articles, I asked the former Committee Chair, Judge Lee Rosenthal, about the possibility of changing the scope of relevance. She bluntly told me that there was no way the Committee would even consider that. I got a been there done that kind of dismissal. Of course, that just made me more determined than ever, and helped motivate me to research the rules more closely and write my articles. After that Judge Rosenthal left the Committee (it has term limits), and Judge Scheindlin left, and a few others. I kept advocating a bit, but very low-key. I mainly just circulated my article, Rethinking Relevance: A Call to Modify the Rules of Discovery (2011). You may recall seeing the graphic I included in the article:
Basically my proposal was to narrow the scope of discovery by deleting the “subject matter” provisions in Rule 26(1). Here is what I said:
The rule should be modified by eliminating the good cause exception. This sentence should be removed: “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Discovery should instead be restricted to: “any nonprivileged matter that is relevant to any party’s claim or defense.”
Rethinking Relevance: A Call to Modify the Rules of Discovery. I also proposed that “The rule should be further modified by eliminating all reference to “reasonably calculated to lead to the discovery of admissible evidence.” Id. I also said: This is just one possible way to do it. I am sure others can think of other, perhaps better ways to tie it down so that discovery is not unduly limited. Id. In fact, this is just what the Committee ended up doing.
I am pleased to say that both of my calls to modify Rule 26(1) were met (I will set them forth in detail at the end of this blog), and more, by the final rules revisions recommendations of the Committee. So, of course I am pleased, and of course I disagree with Judge Scheindlin’s attack on the Committee’s work on multiple grounds.
What it is like to be Blackballed
I have all along considered that the focus on sanctions and preservation in the mainstream rules debate was misplaced, that the real problem was too much information. The old definitions in the rules of relevance were hopelessly out of date to the information age, and anyway did not make sense. But, I had many other things on my plate. I did not try to follow the Rules Committee work. To be honest, a big obstacle was put in my way to prevent or at least discourage me from doing that. There were several large professional events sponsored to discuss possible changes to the rules, and although all my friends were invited to speak. I was not. Repeatedly. I got the message and understood that I was unwelcome by the organizers of these events. I knew why.
You may recall my attack of the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System a few years ago? I said out loud what most leaders in the e-discovery community were thinking at the time, but did not dare say (you know who you are). See Eg Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass; Flat Earth Society Admits World is Round, Wants to Learn to Circumnavigate. I pointed out in my controversial blogs that this group of VIP lawyers were wrong, that poorly written e-discovery rules and bad judges were not ruining our justice system as they alleged. I pointed out that they were the problem, not the rules or judges, because they did not know how to do e-discovery.
They were attacking my field of e-discovery with no experience or knowledge of the subject. I pointed out that they were not keeping up with the times and not making the effort required to learn how to do e-discovery. I even put this into my books and training program. I can be pretty outspoken when I want to, and after a lifetime of fighting it out in the courts, I cannot be easily intimidated, especially by a bunch of senior lawyers, even if they do have political power (and, as it turns out, this group had lots of power and political juice).
The College and Institute naturally did not appreciate my expose. After that exercise of free speech I was not invited to any of the Duke Conference events on rule revisions. These two powerful groups organized and sponsored them all. In fairness, I could have gone to these Duke conferences and just listened I suppose, or asked questions from the audience. I was not barred from attending. But I was pointedly excluded from any invites to speak or participate.
Oh well, ostracization is sometimes the price a gadfly must pay for pointing out that the emperor has no clothes. Blackballing goes on in e-discovery and it does not feel too good. But I shrugged it off. It has happened before and probably will again. The truth is its own reward, and now, it appears, I have the last laugh, and so am willing to go public with this old rebuke for the first time.
After my pointed non-invites to all of the Duke conference events, I gave up trying to influence the revisions and the Committee. I moved on to other challenges. I never spoke with the Committee after that regarding my thoughts on relevance.
Since I was out of it, and had anyway given up, I was literally shocked to find out in an earlier panel that I had won! The Committee had voted to change the scope of relevancy after all. They had not focused solely on preservation and sanctions as I had assumed. They did not take my exact suggestions, and who knows, maybe they did not even recall my earlier lobbying. A good idea has a powerful force of its own, and, despite what some in e-discovery may think, no one owns an idea. I do not really care about recognition anyway. I get plenty of that from my friends and family. I care about improving our system of justice. I just want to make a few contributions, some payback to the profession I love, before I hang up my boxing gloves and retire.
To me the change in relevance is far more important than a rule of preservation, and I am not at all disappointed by the Committee’s decision not to try to write that into the rules. So, I disagree with Judge Scheindlin’s critique. What do you think? Leave a public Comment below or write me a private email. Certainly lots of people were talking about this at Georgetown at the end of the CLE.
New Rules Are Coming Next Year
As mentioned, I was surprised to learn at this event that the Rules Committee had completed its work, that it had agreed upon draft revisions to the Federal Rules of Civil Procedure. The draft language was not circulated at Georgetown, and I could not find it on the Internet. But we all heard an excellent summary at the earlier panel on the Future of e-Discovery. Robert Owen explained what has been agreed to, and that it would be submitted for public comment soon. Who knew?
These proposals will be controversial. I am pretty sure that the plaintiffs Bar will rise up in opposition. A lot of defense lawyers will not like them either. They were hoping for a new easy button on preservation. We already know how Judge Scheindlin feels.
It is somewhat odd that these final revisions have remained under the radar up to this point. But no longer, for you will here find attached the official:
- Draft Minutes of the Civil Rules Advisory Committee, November 2, 2012 (primarily pertains to the revisions to Rule 37(e), which were apparently quite controversial);
- Rules Committee Materials on Preservation and Sanctions Issues; and, the
- Duke Conference Subcommittee Rules Sketches, (see page 20 for the proposed revisions to Rule 26(1).
Also see the Committee’s website.
To cut to the chase, here is the current proposed new draft language to amend the rules on relevance: (new language is underlined)
26(1) Scope in General. Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the
case considering the amount in controversy, the importance of
the issues at stake in the action, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information [within this scope
of discovery]{sought} need not be admissible in evidence to be
discoverable.
All I can say about this proposal is great job. My ideas are in there, but incorporated in a different way, a better way. The link to proportionality in order to justify discovery into facts just “reasonably calculated” is indeed genius. Congratulations to the Committee! The core principle of Relevance is tempered directly by Proportionality. More of the same is now not only cumulative, but not discoverable. And that vague expander of reasonably calculated to lead to admissible evidence is also tempered by proportionality. The Rules Committee and I see completely alike on this core Scope of Discovery issue. Unfortunately, I do not think that is true of all of the other proposed rule amendments.
_______________
Here is the official language for revisions to Rule 37(e), which used to be known as the safe harbor provision:
Rule 37. Failure to Make Disclosures or to Cooperate in
Discovery; Sanctions
* * * * *
(e) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION. Absent
exceptional circumstances, a court may not impose sanctions
under these rules on a party for failing to provide
electronically stored information lost as a result of the
routine, good-faith operation of an electronic information
system.
1
2 (e) FAILURE TO PRESERVE DISCOVERABLE INFORMATION. If a party fails to
3 preserve discoverable information that reasonably should be
4 preserved in the anticipation or conduct of litigation,
5
6 (1) The court may permit additional discovery, order the
7 party to undertake curative measures, or require the
8 party to pay the reasonable expenses, including
9 attorney’s fees, caused by the failure.
10
11 (2) The court may impose any of the sanctions listed in
12 Rule 37(b)(2)(A) or give an adverse-inference jury
13 instruction only if the court finds:
14
15 (A) that the failure was willful or in bad faith and
16 caused substantial prejudice in the litigation; or
17
18 (B) that the failure irreparably deprived a party of
19 any meaningful opportunity to present a claim or
20 defense.
21
22 (3) In determining whether a party failed to preserve
23 discoverable information that reasonably should have
24 been preserved, and whether the failure was willful or
25 in bad faith, the court should consider all relevant
26 factors, including:
27
28 (A) the extent to which the party was on notice that
29 litigation was likely and that the information
30 would be discoverable;
31
32 (B) the reasonableness of the party’s efforts to
November 1-2, 2012 Page 127 of 542
8
33 preserve the information, including the use of a
34 litigation hold and the scope of the preservation
35 efforts;
36
37 (C) whether the party received a request that
38 information be preserved, the clarity and
39 reasonableness of the request, and whether the
40 person who made the request and the party engaged
41 in good-faith consultation regarding the scope of
preservation;1 42
43
44 (D) the party’s resources and sophistication in
45 litigation;
46
47 (E) the proportionality of the preservation efforts to
48 any anticipated or ongoing litigation; and
49
50 (F) whether the party sought timely guidance from the
51 court regarding any unresolved disputes concerning
52 the preservation of discoverable information.
Conclusion
I favor the relevance revision, but I am currently undecided on the 37(e) proposal. I need more time to study it and would like to hear argument on the proposal. We know where Judge Scheindlin stands. Now I am looking forward to your comments on these proposals. I expect many of you will have opinions. Now is your chance to share them. Please feel free to do so here.
No doubt this will be the first of many blogs on this important subject. Although you will not see me as a speaker at future Duke conference events, I’m sure, I will keep writing. I hope to keep proving that the pen is mightier than the sword.
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Thanks for raising these developments from their usual inside baseball status – it’s good to see some discussion on early stages of these amdendments.
A very small clarification – the Advisory Committee’s Dec. 5 2012 transmittal Memorandum only recommends the Rule 37 modifications for publication. it says the Advisory Committee hopes to be able to do the same for Rule 26 by June 2013.
So the Rule 26 language is still quite fluid, if the degree of change in proposed Rule 37 between the March 2012 discussion and November 2012 voting is any indication.
I guess I don’t agree with your statement regarding the lawyers being the problem with e-discovery incorporation into our justice system. Attorneys operate within the system provided to them. Quite clearly, the judiciary’s rulings regarding e-discovery have been for some time all over the map. And consistently they have called for parties to review everything under the sun, whether it be predictive coding or eyeball review. As far as sanctions regarding e-discovery misdeeds, in almost every situation it was one side or the other trying to get away with less than eithical behavior. What e-discovery has actually done is made it harder to get away with abuse of the discovery process. The attorneys who keep trying are the ones complaining the loudest.
Ethical attorneys will follow the process willingly, if it was consistent and was described clearly, without leaving so much interpretation to be done by the judiciary.