As all of my readers know, Richard Braman was the founder of The Sedona Conference. Richard made a big impact on the legal world, especially in e-discovery. He tirelessly promoted legal education conducted in a new way, based on Dialogue, not lecture and argument. He is also well-known for his controversial stand promoting Cooperation in litigation, especially discovery. This is a position I have been proud to support and follow his leadership.
This is part two of a two-part blog, Fears and Loathing (and Pain) in Seattle. Part one is found here. This is not really a Hunter S. Thompson worthy story, but it is Seattle after all. And the name of the law firm involved here just begs for the analogy.
Before you begin reading part two of this sanctions saga, take a look at the poll results from Part One. If you have not already done so, cast your vote. I promise you it is all anonymous. The last time I checked it was about evenly split on both questions, but not enough readers have voted. So, please join in now.
Seattle Court’s Finding of Bad Faith
Judge Robart in Knickerbocker v Corinthian Collegesfound that there was clear and convincing evidence the defendant, and their counsel, the Seattle law firm of Payne & Fears, had refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount tobad faith. He found that they had delayed resolution of Plaintiffs’ claims, expended both the court’s and Plaintiffs’ limited resources on matters ancillary to the merits, and threatened to interfere with the rightful decision of this case.
Judge Robart did not think too much of defendants argument against all sanctions because the email was eventually found and produced. Here is his well written response to this argument (citations removed and emphasis added):
Corinthian argues that, at least with respect to emails, no spoliation has occurred because Corinthian has since recovered and produced all responsive employee emails from the backup tapes. The court notes that this argument contravenes what appears to have been Corinthian’s previous position that the backup tapes were not reasonably accessible. Corinthian’s characterization of the backup tapes has shifted with the winds throughout this litigation, adopting whatever posture is most convenient in the immediate context. (Compare Ruiz Decl. ¶ 17 (“I explained that it was unreasonable and impractical to search them . . . .”) with 12/12/13 Trans. (“It would be perfect. It would be one day, $1,000.”) (Mr. Brown testifying).)
Corinthian cannot have it both ways. If the information on the backup tapes was unavailable within the meaning of Federal Rule of Civil Procedure 26(b)(2)(B) such that Corinthian was not required to recover it, then the Plaintiffs’ deleted emails were, in fact, spoliated evidence. If, as Corinthian’s counsel represented at oral argument, the information on the backup tapes was accessible, then Corinthian had little basis for refusing to search the backup tapes under the parties’ Stipulated Order, no basis for filing a verification with the court affirming that it had searched “all available electronic sources”, and appears to have assumed a misleading stance with Plaintiffs from the beginning.
Corinthian counters that it encountered substantial technical difficulties and costs in retrieving the emails from the backup tapes. But any obstacles Corinthian faced in recovering the emails were the direct result of Corinthian’s inadequate discovery search, deletion of evidence, and lack of candor with both Plaintiffs and with the court. Such obstacles do not transform bad faith into good.
The judge basically accuses the defendant’s law firm, and thus the defendant itself, of not being straight with the court about plaintiffs’ emails and the defendant’s backup tapes.
Throughout the course of the litigation, Corinthian did not once provide a straight-forward explanation of the process and cost of extracting information from the tapes.
Here is how Judge Robart wrapped it all up.
In sum, the court finds, by clear and convincing evidence, that Corinthian’s and Corinthian’s counsel’s lackluster search for documents, failure to implement a litigation hold, deletion of evidence, refusal to cooperate with Plaintiffs in the discovery process (particularly as evidenced by its withholding of information regarding both the backup tapes and its interpretation of the parties’ Stipulated Order), reliance on a recklessly false declaration, shifting litigation positions, and inaccurate representations to the court constitute bad faith or conduct tantamount to bad faith.
Bad Faith Does Not Necessarily Mean Dispositive Sanctions
Even though the court found bad faith, no dispositive sanctions were granted. The adverse inference instruction the plaintiffs had requested was also denied. These harsh sanctions were denied because plaintiffs provided, as the judge put it – zero evidence that any evidence of significance to the case was not produced. They only offered conjecture. As Judge Robart noted: produced documents cannot form the basis for a spoliation instruction.
I am kind of surprised by plaintiffs’ failure to offer up some evidence that relevant evidence was not produced. You would think the plaintiffs would be able to come up with something concerning their own email.
Based on this record, the wise Judge Robart, although obviously upset with defense counsel, wanted the racial discrimination case to be tried on the merits. Besides, perhaps he knew that the emails that were produced were good enough for the plaintiffs to prove their case. Or maybe it was the opposite. The plaintiffs could have had a very weak case. We cannot tell from this opinion. We can only tell that the judge wanted the case tried on the merits, despite the bad faith e-discovery by defendant.
The judge got his message across on his intolerance of bad faith by imposition of the $10,000 fine against the Payne & Fears law firm, and the $25,000 fine against defendant. He also awarded the plaintiff’s reasonable attorney fees and costs incurred in connection with the sanctions motions and duplicative discovery related thereto. Justice was done.
Lessons learned from Knickerbocker
Several lessons can be learned from this case. For one thing, there is the trial lawyers lesson. Be careful how you answer questions posed to you by the judge. Be sure you remember these magic words: I don’t know. Restrain the urge to speculate or BS. Just keep to the facts you do know. Ask to get back to the judge on important questions with a supplemental brief or something. This case clearly shows why that is important.
The obvious primary e-discovery lesson is to always implement a litigation hold. The hold should be in writing and there should be follow up by conversations with the custodians on hold and with IT. Auto-deletions programs should be suspended, and, if the size of the case warrants it under proportionality analysis, preservation of ESI by bulk IT collection should be done. In smaller cases, collection may not be required and preservation-in-place may be adequate. There is no one-size fits all in e-discovery. Although there are plenty of plaintiff’s experts out there ready to tell a court every case should be treated like the Taj Mahal. They should not. Efforts should be scaled proportionally. See eg:My Basic Plan for Document Reviews: The “Bottom Line Driven” Approach – Part Two (e-Discovery Team, 10/9/13)
The final lesson here pertains to backup tape restoration and search. It is never as easy as you think. Indeed, the tape or tapes may have deteriorated to the point that restoration is impossible. You never know until you try. Once you restore, finding the relevant ESI can also be a challenge. Do not ever sat easy peasy when it comes to backup tapes.
This opinion does not really go into the defendant’s search efforts here, merely stating that about 3,000 relevant emails were found from a search of the emails of all employees at one location. That still seems like a low production. But I suspect the “search” consisted of running keyword terms agreed upon with plaintiff’s counsel, and then manual review of the emails that contained the terms. If they were relevant, they were part of the 3,000 produced. If not, then of course they were not produced. You do not produce irrelevant email just because they happen to have an agreed upon search term. I suspect this kind of procedure was followed here, and if so, the plaintiffs cannot complain about the search efforts made by defense counsel. They were following the parties agreed upon protocol.
We really do not know what that protocol was, but if, as I suspect, it was a keyword search protocol, then, questions of estoppel aside, the issue of whether it was a reasonable effort would depend on whether the common sense dictates for keyword search contained in Judge Peck’s Gross Construction opinion were followed. William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009). Were the witnesses interviewed as to the language used? Were various keywords tested? Was the underlying data studied? The key documents? Or was it all done in the blind, like a child’s game of GO FISH? Child’s Game of “Go Fish” is a Poor Model for e-Discovery Search(e-Discovery Team blog, 10/4/09).
Tested Keyword Search is Adequate for Most Cases
Keyword search alone, when done according to the standards set forth in Gross Construction, is a fair and adequate effort in most employment discrimination cases like the one in Knickerbocker v Corinthian Colleges. Most employment casesare not really that complicated. For that reason the key documents needed to try most of these cases are not that difficult to find. Keyword search can and does work in the average case to meet the requirements of both Rule 26(g) and Rule 1 (just, speedy and inexpensive). It apparently worked just fine in Knickerbocker too, that is, after defense counsel stopped their Hunter S. Thompson routines and started playing it straight
There are some exceptional employment cases where keywords are inadequate. It depends on the case and the type of ESI, and the importance of the ESI to the case, and volume of ESI. But for most employment law cases the tested keyword search method of Gross Construction is reasonable and proportional. More sophisticated search methods, such as my favorite, predictive coding, may be needed in larger, more complex cases in other fields of law, as well as in some class action employment cases. But tested keywords work just fine for the vast majority of small cases that now flood our court system.
Most of these small cases in federal court are employment law cases. It seems like everyone has a beef these days. You would not believe the kind of frivolous cases that we see every day in my firm. Plaintiff’s counsel are not being selective. Many seem unable to overcome the natural trial lawyer tendency to be overconfident, unable to objectively predict the likely outcome of a potential client’s case. See: Lawyers as Legal-Fortune Tellers, (e-discovery Team, 3/30/14); 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).
This limit of predictive coding to larger, more difficult cases will probably change in the future. The ever growing volume and types of ESI may demand the use of predictive coding in more and more cases. That should be made easier as the software costs of using predictive coding comes down even further. (For instance, my firm just closed a deal with Kroll Ontrack that lowers the costs for our clients even further. Look for press releases on this soon.) In the future predictive coding will expand to many more types and sizes of cases, but for now, predictive coding remains the exception in e-discovery, not the rule.
If your life revolves around discovery in the big cases, the complex cases with tons of ESI (actually, its weightless you know), then you should be using predictive coding all of the time. But for the vast majority of lawyers, dealing with the vast majority of relatively simple cases, it is not needed yet. You might as well hunt mosquitos with an elephant gun. Keyword search, done right, still works fine for the mosquito cases. Do not misunderstand me, mosquito bites can still hurt, especially if you get hit by too many of these blood suckers. You have to defend your company, but bad faith attempts to avoid discovery are never the way to go. Knickerbocker shows that.
Be straight with your judges. Always tell the truth. Talk about proportionality. They get it. The judges will protect you from the disproportionate use of e-discovery as an extortion tactic. We all know it still goes on. Has been for a long time as my parting string cite below reminds us. Both responding and requesting parties have to conduct discovery in good faith. When they do not, there are plenty of good judges around like James L. Robart to stop the abuse.
Discovery abuse as a weapon. See, e.g.:
Advisory Committee Noteto the 1983 Amendment of theFederal Rules of Civil Procedurecreating Rule 26(g) (“Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses.”)
Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir.1993) (Fed.R.Civ.P. 26(g) was “designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.”)
Bondi v. Capital & Fin. Asset Mgmt. S.A., 535 F.3d 87, 97 (2d Cir. 2008) (”This Court . . . has taken note of the pressures upon corporate defendants to settle securities fraud ‘strike suits’ when those settlements are driven, not by the merits of plaintiffs’ claims, but by defendants’ fears of potentially astronomical attorneys’ fees arising from lengthy discovery.”)
Spielman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F.3d 116, 122-23 (2d Cir. 2003) (“The PSLRA afforded district courts the opportunity in the early stages of litigation to make an initial assessment of the legal sufficiency of any claims before defendants were forced to incur considerable legal fees or, worse, settle claims regardless of their merit in order to avoid the risk of expensive, protracted securities litigation.”)
Lander v. Hartford Life & Annuity Ins. Co., 251 F.3d 101, 107 (2d Cir. 2001) (“Because of the expense of defending such suits, issuers were often forced to settle, regardless of the merits of the action. PSLRA addressed these concerns by instituting . . . a mandatory stay of discovery so that district courts could first determine the legal sufficiency of the claims in all securities class actions.” (citations omitted))
Kassover v. UBS A.G., 08 Civ. 2753, 2008 WL 5395942 at *3 (S.D.N.Y. Dec. 19, 2008) (“PSLRA’s discovery stay provision was promulgated to prevent conduct such as: (a) filing frivolous securities fraud claims, with an expectation that the high cost of responding to discovery demands will coerce defendants to settle; and (b) embarking on a ‘fishing expedition’ or ‘abusive strike suit’ litigation.”)
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.
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.
Ralph Losey is a practicing attorney and shareholder in a national law firm with 50+ offices and over 800 lawyers where he lead’s the firm’s Electronic Discovery practice group. Ralph is the author of five books on electronic discovery published by West Thomson, the ABA, and e-Discovery Team® LLP. He is also the founder of Electronic Discovery Best Practices, founder and CEO of e-Discovery TeamTraining, an online education program. Ralph has limited his legal practice to electronic discovery since 2006, with a special interest in software and the search and review of electronic evidence using artificial intelligence. Ralph has been involved with computers, software, and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in Commercial Litigation. His full biography may be found at RalphLosey.com.
Ralph is also the proud father of two children, Eva Grossman, and Adam Losey, an e-discovery lawyer (married to another e-discovery lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.
1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or
produce deleted, shadowed, fragmented, or residual electronically stored information.
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.
14. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.