What if you had to choose between not taking any depositions in a case and not doing any e-discovery? A far-fetched choice you might think, but is it really? In what percentage of cases is e-discovery avoided by one or both sides? Perhaps you live in an e-discovery bubble like I do, else why would you be reading this blog? In our world almost all cases have e-discovery. But still, be real, what percentage do you think applies across the country? The world? Just ask any state or federal judge how often they see e-discovery in their cases. Umm. Almost never. How often are there no depositions?
The vast majority of lawyers do not do e-discovery in their cases, but they do take depositions. They are in effect answering my question every day by their behavior. For them this is a Hobson’s choice. You have no doubt surmised that I think they are making a poor choice, a foolish choice. But are they really? Before I go any further, let us review the basic litigation background behind my question.
Almost all law suits are concerned with disputed issues of fact. If there are no disputes as to what happened, then the case could be decided on the pleadings alone, or at least on a summary judgment basis. Judgment on the pleadings are rare, and in such cases, discovery usually has no role. Summary judgments are not that uncommon, and they may well involve some discovery, but even there the discovery should be limited. In most cases, one side has one version of an event, the other has another version. Same event, but different stories as to what happened.
The focus of litigation is to line up evidence to prove one side or the other’s version of events. A trial is then required to resolve the disputed issues. A trial you may remember is a fabled, now nearly mythical event, that everyone prepares for but never does. Trials before judges or juries were still common when I started practicing law in 1980, and now only occur in less than 1% of federal cases.
Getting back to the disputed issues of fact, the recollections of what happened usually vary dramatically on certain key issues. I am not talking about the interpretations of what happened, nor the legal significance of what happened. Those are not disputed issues of fact. Those are disputed issues of law, and the application of law to facts. Every good litigator understands the difference between law and fact, and also the difference between material and immaterial facts in summary adjudications. Disputed issues of material facts of what really happened are the subject of discovery. Who shot John? That sort of thing.
That is what discovery is all about. To discover what really happened. To learn the true versions of events that occurred in the past, events that now form the basis of a dispute.
So much for litigation 101. Now to answer the question raised by the blog. What if you had to choose between not being able to ask people questions about what they remembered happened, and not being able to look at the documents they created at the time, the emails, text messages, FaceBook postings, Tweets, spreadsheets, word documents, PowerPoints, etc. Which would you choose?
Bear in mind that both sides have to plead their version of the events. It is in the complaint, or answer, or affirmative defenses. Also bear in mind that you can still serve Interrogatories and Requests for Admissions. You just have to choose between depositions and written discovery, in other words, e-discovery. Which would you choose? Which should you choose?
I submit that in the vast majority of cases that make their way into federal court the obvious choice is to do e-discovery, and forego depositions. You pretty much know what they are going to say anyway. Moreover, people have terrible memories or what happened, very convenient memories. Some wise guys will even deliberately lie.
I know that all trial lawyers over forty have Perry Mason delusions of grandeur. They think their awesome cross-examination will cause the witness to break down and admit the truth, or at least get them to say what they want. Maybe they will even cry in the process. I know I still suffer from that delusion. It is a delusion buttressed by the few times, to be honest, very few times, in my career where that really happened. We tend to forget that most depositions are just frustrating exercises in pinning people down. We focus our memories on the rare breakthroughs and highlights. Overconfidence like that is just part of most lawyers personalities, as I explained in Lawyers as Legal-Fortune Tellers.
Even the times where I found depositions to be very effective — times where key admissions were made, stories were changed — usually hinged on being able to show the witnesses certain key documents. Then the highly charged Isn’t it true that … ? questions would follow. Sometimes we would even say, or at least infer, Were you lying then, or are you lying now? Great fun indeed. But wait, under the hypothetical I have posed, the choice between discovery of writings/things, and depositions, you would not have any documents to impeach the witness. You would not have an Exhibit “A” to refresh the witnesses recollection.
For me the answer to this question is easy. In the average case in federal court, if I had to choose between not taking any depositions, and not being able to read any of the documents, I would forego the depositions. If the case actually did go to trial, then I could exercise my Perry Mason skills. After all, Perry never had to take any depositions. He just went right to a hearing or trial. I may not know exactly what the witnesses will say at trial, which, by the way, is true for depositions too, but I would have a pretty good idea. Plus, and here is the key part, I would be armed with Exhibit “A.” Maybe even Exhibits “A” though “G.” See: Secrets of Search – Part III, Fifth Secret: 7±2 Should Control All e-Discovery (But Doesn’t). I would have the few smoking gun documents needed to prove my case. The witness testimony would just be the icing on the case.
This is the right answer for me. I am just cocky enough, and experienced enough, to know I could pull off a trial like that, if I was lucky enough to be a part of the one percent solution. Many trial lawyers are like that (although not many have read the law review article showing how overconfident most of us are, but I digress. See: Goodman-Delahunty, Granhag, Hartwig, Loftus, Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, (Psychology, Public Policy, and Law, 2010, Vol. 16, No. 2, 133–157)). Where I am different from most trial lawyers, or better said these days, most litigators, is that am also cocky enough, and experienced enough, to know I could find the truth from the documents and things.
I am talking about the average case in federal court, remember. Not all cases even have writings as evidence, but most do. My premise is that in most cases the writings, the documents, the things, will have the real story. They will show the contemporaneous account of events, not the convenient recollections. They will be the doorway to the truth.
That is the premise behind a blog I wrote on the relative importance of e-discovery to justice. Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation (e-Discovery Team, 8/30/09). It featured the ideas and quotes of Bertrand Russell and an Order by Judge James Francis in a case concerning a $4.2 Million impressionist painting. Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009).
Unlike most litigators today I am confident that I could find the ESI smoking guns, if they exist. And if they do not, well, that in itself tells a story. The absence of proof of one side’s version of events can, and often does, prove the falsity of their accusations. The missing documents speak louder than any biased witness.
I call this the Unicorn search problem, which I have previously described in Predictive Coding Based Legal Methods for Search and Review. Of course, this requires proof of excellent search, another challenge that does not intimidate me or other e-discovery specialists. Indeed, I would relish the opportunity to demonstrate and drone on and on about legal search skills. As Ex. “A” to prove this point, I offer this blog.
Is My Answer the Right Answer?
That bring us to the heart of the matter. My answer is right for me. All I have done since 2006 is e-discovery. I also know computer systems and technology pretty well due to my fascination and working with it since 1978. Still, given my age, I have probably taken more depositions, than handled modern-day e-discovery projects. This puts me in a position not typical for most lawyers today, a position where I am just as comfortable with e-discovery as I am with depositions.
In view of my knowledge and skill at e-discovery, the choice of documents over depositions is the right choice for me. The logic of that choice is incontrovertible, if you accept my premise that in today’s world, documents, especially ESI, are better indicators of the truth than swearing contests.
But is it the right choice for you? If you are like me, and most of my readers are, then the answer is clearly yes. In fact, some of you may be more skilled at e-discovery than depositions, which weighs even stronger in favor of documents over depositions.
But, dear readers, we are so different from mainstream lawyers, are we not? The vast majority of legal professionals lie outside of the e-discovery expert bubble. Most lawyers and paralegals have never even done an e-discovery project. Indeed, a few among the lawyer class still do not know how to turn on their computer. I have even heard of one or two that do not have a computer in their office. Chief Justice John Roberts still handwrites out all of his opinions!
I am willing to bet that the majority of lawyers in the U.S. have never even read the 2006 e-discovery rule amendments, much less heard of the current proposals. Why, I was at a CLE recently where no one had even heard of Judge Shira Scheindlin! (Please don’t tell her.) They could care less about e-discovery. In short, they do not know how to do it. They do not want to learn. Out of sight, out of mind. End of story.
Accepting the premise that the vast majority of lawyers are unable and unequipped to do e-discovery, and in fact are not doing it, the choice here is a false one. They never do any e-discovery anyway, so there is nothing to give up in choosing depositions over e-discovery. They in effect make that choice everyday in their Nineteenth Century Perry Mason inspired legal practices.
Putting aside Rule 1.1 of ethics (competence), for lawyers unskilled in e-discovery – which means the vast majority of lawyers – their choice to take depositions and forego e-discovery is the correct choice. They would just make an expensive mess of a big ESI search anyway. So they should stick to what they know. They should do what they do well. After all, they can muddle through with paper printouts. They have been doing that for years. For a decade, or more, most lawyers have shown that it is quite possible to make do with the email their clients find for them and fax over.
It never even occurs to most lawyers today, especially the ones over forty, that their might be more skills required to finding relevant ESI than a keyword search of Outlook email. They are still quite impressed with keyword search technology, just as was Judge Thomas F. Hogan was in 2004. In re Lorazepam & Clorazepate, 300 F.Supp.2d 43, 46 (D.D.C. 2004) (“… the glory of electronic information is not merely that it saves space but that it permits the computer to search for words or ‘strings’ of text in seconds.“)
Most lawyers respond with disbelief if you explain that keyword search is an old computer method invented in the fifties. They think you are a complete idiot if you say it is ineffective to find email. After all, it works on Google, WestLaw, and Lexis. They are unaware of the string of cases that came just four years after Lorazepam that speak of better ways of search and the problems with keywords. United States v. O’Keefe, 37 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, M.J.); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008) (Facciola, M.J.); and Victor Stanley, Inc. v. Creative Pipe, Inc ., 250 F.R.D. 251, 260, 262 (D. Md. 2008) (Grimm, M.J.). For an updated collection of modern search cases and discussion on legal search, see the The Sedona Conference® Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (2013).pdf (December 2013). (Yes, after being in so-called draft form since 2007, the Search Commentary has finally been completed. It is good reference for search geeks. Congratulations to the 2013 Editors-in-Chief: Jason R. Baron and Maura R. Grossman (the delay was not their fault). Note that Jason was the sole Editor in Chief in 2007 for the then revolutionary, initial draft version of the Search Commentary.)
If you still have the average Joe Lawyer’s attention when you go on to speak about artificial intelligence as a far better method for search, they are inclined to think it is just science fiction stuff. But if you tell them that is how their Pandora works, and they indeed use Pandora, which more and more of them under forty do, you may get them to think twice about that. Still, the average lawyers thinks predictive coding is only something of interest to technologists and scientists, not lawyers. See eg. Practice Point 8 of the Sedona Search Commentary.
If you throw the Gross Construction wake up call case at them, they say: that is just weird New York City stuff. William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009). If they are in NYC: Well, that’s just Judge Peck; and then go back to sleep. Judge Peck Calls Upon Lawyers to Use Artificial Intelligence and Jason Baron Warns of a Dark Future of Information Burn-Out If We Don’t (e-Discovery Team, 10/16/11). If you throw the new Sedona Commentary at them, they will just duck and cover.
According to average lawyer gestalt, if the other side in a case is an aggressive jerk, and plays the mean e-discovery card, you can always just hire a vendor to do it for you. E-discovery law is not really the practice of law anyway. Once you stop searching for paper documents, and crossover into a search for ephemeral ESI, you have left the world of law. You have entered the Twilight Zone of litigation. You are no longer practicing law and gathering evidence. You might as well be a robotics expert. It is a quasi-legal world where otherwise perfectly ethical lawyers cheerfully delegate all duty to find relevant information to non-lawyers. Just ask any practicing lawyer who has crossed over to the vendor side. They now live in an imaginary world of vendor omniscience, a world where legal advice becomes technical advice because magical computers are invoked. If any of my readers doubts this is what the average lawyer really thinks, you should step out of the bubble more often. I am not exaggerating.
Given equal skills in deposition taking, and e-discovery, if you had to choose between Rule 30 and Rule 34, you should choose production over depositions. It has a much higher probability of leading to evidence that will help you. The contemporaneous accounts are much more likely to uncover the true version of the facts. If, as may be true for some of you in the bubble, your skills in e-discovery are stronger than your deposition skills, then the choice of Rule 34 over Rule 30, is even more obvious. But for the vast majority of lawyers, who have no skills in e-discovery, or very little skills, and have pretty good skills in deposition taking, certainly far more than in e-discovery, they should choose Rule 30. They should choose depo over disco. It may not lead to the truth, it may be an exercise in futility, but at least they will know what they are doing. Not convinced about the futility aspects, take a moment to watch these wonderful excerpts from the March 6, 2014, deposition of Martin Bieber.
Choosing depo over disco is what the average Joe Lawyer on the street does every day. They make a logical choice. They do what they know how to do. They take depositions. They do not do what they do not know. They do not ask for ESI. They avoid e-discovery. If it is pushed on them, they scowl and hire a vendor to handle it for them. This is perfectly natural and rational behavior. Or at least, that is how it seems to them.
Thus here we are. This is the state of the legal profession in 2014. Stuck in an ethical quagmire of competence. Eventually the profession will grow out of this problem. There will be new problems. Time will heal all. So too will Watson the Lawyer, the handy artificial intelligence robot who will come in time. In the future every law firm will have one, and likely have an AI-Support Department to handle it too. The few human lawyers remaining will not even understand the question posed by this blog. If they do, they will be mystified and shake their heads in disbelief concerning their primitive predecessors. Some already do.