e-Discovery Team ®

There can be no real justice without truth, and in today’s world of civil litigation, no real truth without e-discovery. That is because writings are the key evidence in most cases and almost all writings today are electronic. The paper documents we see are mere shadows of the original ESI; small tips of vast icebergs of electronic truth. Yet lawyers continue to settle for the few paper remnants scattered about a controversy and avoid search of these depths. This realm is beyond their training, beyond their competence. So they agree between themselves not to go there, or if forced, they delegate the task to vendors. They abdicate the traditional role of lawyer as master of discovery. This is a disservice to the profession and the clients we serve.

This situation is getting worse each day, not better, as ESI grows exponentially in volume and complexity. It has created a crises for the legal profession. It is not a crises of poor rules as some contend, and thus revising the rules again is no solution. It is a crises of competence, and as such it is an ethical crises. It is time we owned up to the problem and did something about it. We have an ethical duty to act. The solution is clear. Education and training, combined with recognition and affiliation of experts where competence has not been attained.

Fundamental to professional ethics is the duty to keep the dispute resolution process fair and honest. Controversies must be settled on their merits based on the facts and the law. Moreover, lawyers must put the interest of their clients ahead of their own personal interests. These are the two core truths of attorney ethics. In electronic discovery, we are failing on both fronts.

Can a lawsuit be fair if only one side has an attorney competent to explore the electronic depths, to uncover the truth of what happened? Is the process fair if the attorneys on both sides lack the competence to find the facts hidden in the electronic writings? If the attorneys agree not to look behind the paper curtain and try a case without knowing the electronic truths, is that a fair trial for anyone? If e-discovery in a case is too arcane and complex for an attorney to handle, do they have a duty to share the burden of representation with another attorney who is competent in this field?

Attorneys must put aside their personal pecuniary interest and act in the best interests of the client. If they are not yet competent in e-discovery, or if they have limited competence and face a problem beyond their means, they must retain co-counsel who is able, rather than avoid it or do it negligently. They have an ethical duty to do so, even though this will lower their fees or prove embarrassing to their false pride. The interests of the client must always come first.

In the medical profession, no physician, barring an extreme emergency, would dream of attempting a procedure for which they were not trained and not competent. They would of course affiliate another physician in their patient’s care who had the expertise needed. They would not just retain a vendor, say a drug company, to tell them what to do. They would enlist the assistance of a peer, of another professional subject to the same duties of ethics and professionalism, not to mention malpractice insurance. Is the legal profession subject to a lower standard? I think not. It is time we started living up to it.

Society is complicated. Law and dispute resolution are in many cases today, if not most cases, nearly as complex as the problems faced by medicine. Specialists are needed in substantive areas of law and in procedural areas. The day has come for e-discovery to be recognized as its own speciality. This does not mean that all e-discovery tasks are beyond the pale of trial attorneys. The modern litigation generalist can, with sufficient time and attention, learn the fundamentals of e-discovery and handle many of the basic tasks on their own, including management of vendors.

Still, most have not yet done so. It takes more than a couple of CLEs and books. Until litigators get there, they have an ethical duty to enlist the assistance of other attorneys who have. Moreover, in large more complex cases, an e-discovery specialist attorney will always be needed to manage and supervise the process and personally handle the most difficult tasks. The facts and issues can be too complex and time consuming to be performed competently by part-time e-discovery practitioners.

ESI Bytes Interview

Since ethics and e-discovery are, in my view, critical topics for all litigators today, when I was contacted by Karl Schieneman (shown left) for another interview, I agreed, but only if we would limit the discussion to ethics. (I have previously done an interview by Karl with Judge Scheindlin focused on education.) Karl, whose day-job is the Director of Legal Analytics and Review at Jurinnov, readily agreed. A lengthy one-hour plus podcast interview resulted, which you can listen to and download at the ESIBytes web. My blog this week, and next, will consist of an edited, shortened, and hyper-linked version of this interview.  Also, by popular demand, I will again include <my secret thoughts to self>, or some of them at least, that occurred to me during this interview, much like I did with the Mary Mack interview. I will skip over the interview introductions and get right to the substance.

THE INTERVIEW

KARL: … Ralph, great to have you back on a second show with us.

RALPH: Great to be here, Karl.  <You’ve gotta be easier on me than Mary Mack.> I like speaking with you and appreciate the opportunity to get the message out there to as many people as possible about the importance of ethics in e-discovery.

KARL: This is a topic that really the more you get into e-discovery becomes apparent as just crying out for attention and you’ve blogged about this topic before.  You recently gave a presentation at Mercer University with Judge Facciola, Jason Baron, Professor Monroe Freedman and others on ethics of electronic discovery.  Tell me a little bit about that conference, which just focused on the ethics.

RALPH: I’d be happy to.  It was really quite an incredible, very well run, good conference at Mercer, which is located just south of Atlanta in Macon, Georgia.  Beautiful campus, and we had two full days for a seminar put on by the Law Review there. <Boy do I sound like a flatter; better shut up.> I believe it was the first academic seminar to address the issues of ethics in e-discovery and also in – there was some other presentations on ethics involving the on‑line provision of legal services and advertising, that sort of thing. <All I can remember of the non-e-discovery stuff was their talk about a former Playboy playmate turned lawyer in Illinois who includes “special photos” in her law web and I am not going to start talking about that!> But the focus was on e-discovery. <Must stop thinking about that Illinois lawyer.>

In fact, this first came up about a year ago, Karl – it’s been that long in gestation. <I am talking about the e-discovery ethics seminar of course.> In reading all of the cases in e‑discovery, where there’s just case after case of lawyers being sanctioned … the latest one is, you know, a law firm alone being sanctioned (Bray & Gillespie v. Lexington Ins.), not the client, for misconduct in e‑discovery.  This seemed quite puzzling to me in that, you know, I’ve been a lawyer a long time – since 1980 – and you didn’t see many sanction cases in the ’80s and ’90s against lawyers.  I mean, they would come up, but spoliation was a pretty rare thing.  So, I got to wondering, you know, what is going on?  Has the legal profession suddenly become less ethical?  Nowadays in the 2000s, are we behaving with lower moral standards than we did in the ’80s and the ’90s. <I was there and learned from many older attorneys and so I know that’s not true.>

I was really trying to figure out why is it that there’s so many sanction cases and that lawyers are being reprimanded so often now, and particularly in the field of e‑discovery.  I mean, I think this is the field, and nobody’s ever challenged me on it, where you’ve got more sanction cases involving lawyers than any other field of law.  I found it quite puzzling.

KARL: You know, I’ve found if you say something like that enough times, it becomes true. People believe it.

RALPH: Well, yeah – no, I would love to see another area of law that has more problems than we do in e‑discovery, but I haven’t seen it.

KARL: I won’t challenge you on it, but why do you think this is growing? Because I don’t disagree, honestly, but why do you think this area is growing with ethical issues?

RALPH: Well, this was the puzzler. <Hope he gives me time because this is going to take a while to answer properly.> And so I started thinking about it, you know, and this is a big problem and it’s not something that just happens overnight.  And then I got an invitation from the Dean at Mercer Law School, who said they were organizing this event and … we came up with a dream team, several of them were available, including Judge Facciola, Jason R. Baron, and the person that I now co‑teach e‑discovery with at the University of Florida Law School, and that is Bill Hamilton.  He came up there.  And then we got Judge David Baker, who’s a Magistrate Judge in Orlando, well known and rightfully so for his writing of the e‑discovery opinion, In Re Seroquel. Judge Baker is the only person I know who’s been messing with computers longer than I have.  He goes back to the early and mid ’70s, so he’s very much of a technophile.

We had this kind of dream team of people that were all – you know, we had months to prepare for this event and trying to think out the whole question of ethics.  Jason gave a presentation – the way it works is in an academic setting, you make a presentation and then the panel members sort of comment on it. Jason made a very interesting presentation concerning ethics related to search, as you might expect, and it had to do with asymmetric knowledge is the way he called it. In other words, when you represent a client as a lawyer over and over again or if you’re in‑house counsel, you become very familiar with their information and you know basically – you have a much better idea of what’s in their information, certainly far better than opposing counsel does. What kind of ethical duties does that create to assist opposing counsel in their search for relevant information? This was the thesis that Jason explored and that was followed up upon by Judge Facciola in a whole area of discussion.

My area of discussion, though, got back to this puzzling question: why are lawyers behaving badly? <That is supposed to be funny Karl. How about at least a chuckle? Maybe he’s never heard of the show?> Kind of a take-off on the popular television show. <Still no laughs. Oh well. Maybe he’s texting or something?> I came up with this thing that I called the wicked quadrant, which is four different factors that I believe explain why it is that all of a sudden there’s so many lawyers being sanctioned in the field of e‑discovery. So I gave a presentation on that.

In the meantime, I also wrote a law review article further elaborating on my thoughts, and that’s going to be published by the Mercer Law Review, coming out soon in their next 2009 edition.  The other thing Mercer did, which is fascinating and I suggest you try and get a hold of this, they made a transcript of the entire proceeding. So you can read Judge Facciola’s speech on this, you can read what Jason had to say about the duty to assist opposing counsel.  You can read what I had to say and everybody, including – by the way, the keynote speaker, who was none of us.

Professor Freedman and Metadata

The keynote speech was given by a legend in academic circles called Professor Monroe Freedman, and he is about – I don’t know – late 70s.  Very vigorous <Tried to beak my hand when he shook it.> and known for his controversiality.  He spoke about the ethics of metadata. He thinks that you have a duty to try and find out what your opposing counsel’s metadata is in emails and correspondence they send you.  In spite of the fact that many state bar associations say it’s unethical, Professor Freedman takes the controversial view that you have a duty to mine metadata.  And so that’s also in the transcript.  A very fascinating discussion about that.  In fact I got into a big argument with Professor Freedman about that as I don’t think that’s proper to do when you’re talking about correspondence between lawyers.  But he has a strong position, saying that it is in fact a duty to your client to try and do that.

KARL: Is Professor Freedman an attorney as well or just an academic?

RALPH: Oh, boy, they hate it when you say just an academic. <Karl, you can now kiss any possible academic career goodbye!> Yeah, he is an attorney – as a matter of fact he represents lawyers that get in trouble with bar associations. And he’s written several textbooks on the ethics of law and is a guy that you might retain if you had a problem ethically in front of a state board. So yeah, he does practice law, but very controversial. One appeals court judge … who later became a supreme court justice … was on a campaign to have Professor Monroe Freedman disbarred because he was controversial back in the ’60s and ’70s. He survived. It’s quite entertaining to read what he had to say.  So look out for that, the Mercer Law Review with the full transcript.

KARL: Okay.

RALPH I’ll probably blog about that or Twitter about it or something to let people know because I think it’s interesting to hear this kind of discussion.  Believe me, no punches were pulled.

The Wicked Quadrant

So anyway, I wrote this law review article called The Wicked Quadrant that will also be included in the publication, and you know, I’m honored to be in there with Judge Facciola and Professor Freedman and Jason and all of them.  I won’t go into the details, but I will just tell you what the four elements of the quadrant are. … I find there’s a lot of resonance and understanding among the general bar, nonspecialists in e-discovery, concerning ethics.  They get ethics and understand the duty of legal competence. They know that’s the fundamental challenge that we’re facing here.

One of the four sections of the quadrant is that we all have a duty to keep up.  We have a duty to learn the new law and like it or not, part of that is – in litigation – e-discovery.  So we’ve got to take the time to train ourselves to be competent in this field. The fact that the bar as a whole is not really doing that is one of the problems and leads to this appearance of impropriety.  A lot of the impropriety is from not knowing what they were doing, and they were making mistakes.  It may look like intentional bad faith, but actually they’re just screwing up because they didn’t know any better.

KARL: Yeah, you know, I’ve found that in law.  I mean, if you think back to when you started as a lawyer, this is where — when I was reading this was my – what I first thought about.  I remember that first year summer associate at a downtown law firm being asked to research something.  And it was almost as if everything I learned in legal writing disappeared from my mind.  I walked into the library and I thought, what do I do?  And I must have killed a lot of time.  I didn’t want to tell anyone I didn’t know how to start it.  And, you know, I got – got through the project but – but it was – it’s almost like you’re not rewarded or there’s this fear of saying I don’t understand this, you know, when it’s the first time you try something.  And that – you know, I don’t know if it’s the way lawyers are rewarded.  You know, I’ve often heard partner, making partner, is a lot about never screwing up.  Anyway, I’m sorry to interrupt you.

RALPH. <Huh? What was that all about.> No, it’s – you know, when I got out of law school, the UCC had just been enacted a couple years before. None of the older lawyers knew the UCC and it was a tremendous opportunity for young lawyers to make a contribution immediately. That’s the same situation we’re in now. When you and I did the show before it was on education, so you’ve heard me talk about this before. Young lawyers just getting out of law school now or just starting practice, there’s a tremendous opportunity for you if you can get the competence necessary because a lot of the older attorneys – the ones that are my age – they’re just not going to take the time and it’s just inherently difficult for them.

I started thinking about it and it is more than just a question of legal competence; it’s also a question of technology competence. That is a key part of the quadrant, the four factors to understand why lawyers are screwing up and behaving badly, is because they’re just overwhelmed by the technology. Most lawyers don’t get it, they don’t understand Facebook, they don’t really understand how email works, how deletion works, they don’t know what double-deletion means. There’s just a lot of things that are confusing to them. This technology incompetence leads them to do dumb things in cases like say, “Oh yeah, we’ll review that back-up tape and produce the relevant emails to you next week, Your Honor” when of course they have no clue that there’s 10 million emails on that back-up tape. They just – they don’t know really what they’re talking about. So that’s a big part of the explanation is that we’re in an unprecedented explosion in technological advances. A lot of us lawyers are having trouble keeping up with the ever changing information revolution. <Well, to be honest, for me it still feels like slow motion, especially when using a PC.> So that’s another part of the quadrant.

And then just real quickly, the other two quadrant sectors are the ethics rules – and we’ll get into this in a minute – where you have the client advocacy duties balanced by the professional duties to tell the truth to the court and the duty to opposing counsel to cooperate. That hasn’t been getting enough attention among lawyers until very recently with Judge Grimm and the Sedona Cooperation Proclamation.  The professional duties have been over-shadowed by that other very popular duty to vigorously advocate on your client’s behalf.  That has gotten out of hand on occasion and that’s the other part of the explanation. Because this is the kind of thing clients understand; they see when you are shouting on their behalf and they may reward that financially.  But they don’t understand why it is that you may have a duty to disclose email that’s going to hurt their case and you have a duty to cooperate. So that gets less financial rewards. I get into the economics involved in all of this as well.

Again, I don’t want to get into too much detail except to say the law review article is coming out soon and if you have my second book, Introduction to E-Discovery, Chapter 6 begins with a version of this same article. … from page 385 all the way to 404. …  Then in the book I get into all of the lessons of Qualcom, which of course is the big … e‑discovery ethics case of the decade.  Let’s hope there aren’t any cases worse than Qualcomm.

ABA Model Rule 1.1 of Professional Conduct

KARL: Yep, that’s true. All right, well let’s – let’s go through some of the rules here. Rule 1.1, Competence, of the ABA Model Rules of Professional Conduct says a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Okay, how do we get in trouble here with ethics and e‑discovery?

RALPH: This is the core problem and this is, you know, why we need more and better training. The problem is, e-discovery isn’t taught in 95% of the law schools, so lawyers are coming out of law school with no information on it, no e‑discovery competence. And in most law firms, except for a very few, typically the larger law firms – in most law firms, there are no e‑discovery lawyers that have done this for years and have gained competence in it one way or the other. So people are all sort of floundering around, which is why your radio show is so important and other educational efforts like that. <A little flattery of the interviewer never hurts.>

People, you know, they need the information out there. It’s why CLEs for e‑discovery continue to be filled even in these rough economic times. People understand that they need to learn this because the whole notion of discovery, it’s now all e‑discovery. Very few writings are created on paper, so 98, 99 percent of our writings today are electronically generated.  Some of them are printed out <Yeah, like that Illinois lawyer. No, must stop thinking about that!>, but a relatively small percentage. Usually the hottest information in any case is going to be the inadvertent information in the electronic mails, the text messages, the instant messages, that short of thing, where people are still saying, you know, incredibly dumb things. <Or including things on their legal web banned in most states.> So to ignore electronic information is to ignore writings. <Writings include photographs you know, all kinds of photographs.> You just can’t conduct litigation <or Bar ethics investigations in Illinois> in a competent manner and not look at all of your writings, not look at the original electronic versions of writings instead of just relying upon, you know, what the client may happen to print out and say, “here, take a look at this.”

One of my favorite cases I like to talk about, maybe because it’s a Florida case and not everyone knows about it, is Martin v. Northwestern Mutual Life Insurance Company. That’s a 2006 Westlaw case, 148991, Middle District of Florida, where the plaintiff’s attorney, he was suing for disability benefits.  He produced paper that his client – he was representing another plaintiff’s attorney … and they said ‘that’s all we got; those are all the writings we have.’  The insurance company, Northwestern Mutual, eventually proved that that was wrong. They eventually found that they had several thousand pages of email and other records that weren’t produced.  And so they were called in front of the Magistrate Judge on a sanctions motion, and the plaintiff’s excuse was, “I’m sorry, Judge, but me and my client, we’re both computer illiterate.  We didn’t really know how to get to that sort of stuff.”

Believe me, this excuse has been used for a long time in courts. It’s still used today in state courts all over the country. But in federal court, and when he did it in 2006, the response of Judge Pizo was to call that “frankly ludicrous.”  That’s a quote.  Judges don’t usually call what counsel says ludicrous. <Of course, they think it all of the time, but you have to be incredibly bad for them to actually come out and say it.>  Here the judge said it the writing; sanctions were imposed against the plaintiff. This case represents the death knell of this whole, “gee, judge, I didn’t know” as a valid way to avoid doing your job and finding the writings, even though they haven’t been printed out.  This “frankly ludicrous” reaction is what I think you’re going to find in every federal court in the country now. They’re just not going to put up with this excuse of I didn’t know how to do it.  Although, honestly, we all know it still goes on in state court. But it’s only a matter of time before the state courts won’t put up with it either. <Please!>

KARL: You know, drilling just a little bit deeper into the competence issue, because there’s just so many areas where this can come up.  You know, the podcast that you blogged a little bit about that I did with Judge Facciola and Tom French, we got into the economics.  And, you know, this is going to cost a little bit of money sometimes to do this.  And Tom French on the plaintiff’s time said, well, if you can’t afford it, you shouldn’t be doing it.  You know, he came right out and said that’s an ethical obligation that you have as the lawyers not to take the case if you can’t afford to do it right and to look at the data, which I thought was an interesting thought I hadn’t really thought about too much, to tell you the truth.

RALPH: Well, that’s a rare breath of fresh air and honesty. But, you know, a lot of plaintiff’s lawyers don’t look at it that way. <Some will take any case that walks through the door.> A lot of defense lawyers don’t look at it that way. <They won’t admit they can’t do e-discovery either and so they just make a terrible muck of things.>  In fact, what we’ve had – what we’ve seen – this is me getting controversial here for a minute – we’ve seen lawyers abdicate their responsibility to vendors. <Oh well, just lost half of the vendors with that remark. Hope it does not piss off Karl.> Now, I know you work for a vendor, too, so you’ve seen it, but you don’t have to give – you don’t have to make any comments, but you know rather than their figuring out how to do it, they’ll hire somebody else to do it and these vendors will end up making a lot of legal decisions. <I just love consultants who say, I’m not allowed to give legal advice, but …> And the lawyers don’t really have a clue what they’re doing. <Better try now to get out of the big hole I have just dug myself into.> Now your company is, I know, one of the good ones and they’re honest, but you and I know that they’re not all like that and that vendors are in business to make money. So what they end up doing is over-review, they look at too many documents. The vendors are not really helping to keep the expenses down because it’s not in their best interest to do so. <Of course, the lawyers love it too. They are happy to be mislead. More review equals more billings. The only one that loses is the client, but no one has told them what is really going on.>

I think that one of the real reasons e-discovery is too expensive is that lawyers don’t know how to do it right and so they over-delegate it to vendors that don’t have the same motivation as a lawyer might to save the client money. <I bet you will never see this quote in the vendor driven e-discovery media.>

KARL: One other area of competence I want your thoughts on a little bit is you mentioned the split between large and mid-size law firms, between those who have e-discovery groups or, you know, focus lawyers that understand e-discovery, and those that don’t. Isn’t it also a battle even with the structure, say you’ve done it right and you have that competence established, to get every lawyer to pick up the phone when they have a matter and say, “hey, I may have an issue here”?

RALPH: Yeah, it’s – it’s a real educational challenge. <He’s baiting me here. Probably pissed about my vendor slams. Got to be careful.> The large firms, like my firm, we have the advantage in that, you know, we can have a few people become an expert in it. But then we have the disadvantage of having literally hundreds of litigation lawyers and training them to pick up the phone and do that, that just takes time. Because it’s – you know, it’s like, can you teach an old dog new tricks?  Yes you can, but it takes a lot of effort. Litigators are used to doing discovery on their own. It’s a hard shock for them to realize that there may be part of discovery that they can’t handle. They don’t like to admit that, but slowly they will start to and will turn to specialists for help.

This point was learned recently by a very good firm, Reed Smith, who has some 1500 lawyers, including some excellent e-discovery lawyers. Yet in the Bray and Gillespie v. Lexington Insurance case just this March, the law firm itself was sanctioned for e-discovery mistakes. It was sanctioned for the actions of two of its attorneys, shareholders.  It was an Orlando district court case.  And it’s not because they didn’t have the law firm resources; it’s because they didn’t ask for the help, these two shareholders just did it on their own.

This is the wake up call, the Bray and Gillespie case.  I think it’s a huge wake-up call for law firms to start imposing some discipline in making sure that larger firms actually use the resources that they’re given.  The citation for that by the way is 2009 WestLaw 546429, Middle District Florida, March 4, 2009.  I think that’s a very important case.  I know my good friend, Browning Marean of DLA Piper thinks this case is more important than the Qualcomm case because it sends a message to the law firms themselves that you’ve got to make sure that the knowledge is actually being used. The courts  are not going to tolerate the kind of activity that happened in Bray and Gillespie and others which were, in the judge’s view at least, a clear violation of the rules of what’s required for the format of production.

Time for a quiz. What do you think? Has the issue of attorney competence with e-discovery reached ethical crises proportions?

Diligence

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.

Fairness

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.

Three-Fold Solution

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.