The Litigation Section of the American Bar Association has published an online article on Qualcomm v. Broadcom. Written by Kristine L. Roberts, Litigation News Associate Editor, the article is significant for its glimpse into the thinking of ABA leaders on electronic discovery abuses. Essentially the ABA litigation leaders remind practitioners of the importance of discovery, and recommend e-discovery checklists as a good way to stay on top of the process and avoid another Qualcomm. While I agree that checklists can be useful, they have their limits, and in my view must be supplemented with expert advice, not to mention a strong sense of ethics and professional responsibility.
Erica L. Calderas is the Co-chair of the Section of Litigation’s Pretrial Practice and Discovery Committee. Erica is quoted in the article as saying:
The Qualcomm decision reminds all litigators—in a very forceful way—of the serious obligations we undertake in responding to discovery.
She is right on there. Discovery, especially complex e-discovery, is not something you can just delegate to a first year associate and forget about it. It is critical to the outcome of most cases, and can be easily messed up if not done right.
Erica recommends that attorneys use standard form e-discovery checklists in every case to make sure they cover all of the bases and avoid e-discovery violations. Good advice. This is especially important for a general litigator who does not have the assistance of an e-discovery specialist in a small case. Erica specifically recommends that attorneys:
[Use checklists to] ensure that you apply a consistent protocol in any new matter—for example, that you routinely instruct your client to preserve evidence, that you identify witnesses with knowledge, that you determine how the client maintains its documents, that you ask the right questions regarding where potential documents may be located, and that you ask about additional relevant documents and potential witnesses in every witness interview.
Checklists and Specialists
Law firms are now beginning to create and employ such checklists as a routine matter in all litigated matters. For instance, many already follow Erica’s advice and routinely instruct their clients on preservation duties at the beginning of a case. This is not a mere CYA exercise. For many clients, even otherwise very sophisticated ones, it can be a real wake up call. Many in-house counsel are, for instance, unaware of automatic ESI deletion programs, PC and backup tape recycling, forensic collection, and the like. They may need significant help to implement an effective preservation hold and collection program.
A few law firms are taking this a step further and recommending to their litigation attorneys that an e-discovery specialist be included in any significant case. This is not a hard and fast rule; merely a recommendation. In some firms, this advice is often not followed until after there is a problem, instead of at the commencement of the firm’s representation when their input could do the most good.
One large firm, Hunton & Williams, has gone beyond mere recommendation. They have promulgated a rule requiring e-discovery attorney involvement. In their words, they have begun “implementing requirements that an e-discovery specialist be assigned to all significant matters involving ESI.” Hunton & Williams has 1,000 attorneys in 18 offices, and, of course, many e-discovery specialists. They are, to my knowledge, the first law firm to explicitly make this a requirement, not just a recommendation. Hunton’s Sherry Harris, whom I met last week at the Harvard Club CLE, brought this to my attention and obtained permission for me to share this. This is an important step and the management of Hunton should be congratulated. I expect that other law firms will follow in their footsteps, and eventually this will be commonplace. This is far more effective a solution than just distributing checklists to all litigators and hoping that everything gets done right.
The participation of e-discovery specialists can work seamlessly if the law firm requires it, and if the firm actually has such attorneys to carry it out. But at this point very few law firms actually have specialists like that, and, of course they do not require what they cannot deliver. Today most law firms, especially small to medium size firms, do not have these specialists. They must look to outside entrepreneurs for assistance when there is a significant matter involving ESI. Of course, I am not saying that every litigated case needs that kind of input. The principles of proportionality and economics must always be followed, and many cases today still do not have a large e-discovery component.
From what I have seen, although there are many e-discovery vendors, there are still only a few attorneys who specialize in e-discovery. Their numbers are, however, beginning to increase, especially among younger lawyers. The few who are full time e-discovery lawyers typically operate as independent entrepreneurs, or in small groups, or are employed by large vendors and consulting companies. This allows them to consult and be retained by other firms. A few e-discovery attorneys are shareholders, or of counsel, to some of the nation’s largest law firms, such as Hunton & Williams. Over half of the top 50 firms have e-discovery lawyers, but even then with varying levels of expertise. These big firm attorneys are usually fully occupied serving the litigators in their own firm, and are only rarely retained by other law firms as co-counsel.
Instead, the e-discovery lawyers who are on their own, or with consulting firms, are the specialists usually retained by law firms, both big and small, who lack attorneys with such arcane skills. As mentioned, they are usually called in to assist on projects after there is trouble of some kind. It is always challenging to bring in an outside attorney as an expert to assist in a case, but it is particularly difficult when it occurs after a problem develops. For one thing, how do you explain “the cleaner” to the client? No doubt it is the fault of the other side, or perhaps the judge. There can also be relationship issues when new attorneys from different firms work together for the first time. This is especially difficult when the trial attorney in charge has made a mistake and does not want to hear about it, nor understand the complexities involved. Yet, this is typically how and when most e-specialists get involved in litigation.
Also quoted in Kristine Robert’s article was David A. Soley, of Bernstein Shur, Co-chair of the Section’s Trial Practice Committee:
We should not be surprised by the ruling, [the opinion] reflects what day-to-day practice ought to be. Attorneys are professionals and have professional standards to uphold, including a duty of good faith and reasonable inquiry in responding to discovery.
I assume David was referring to the sanctions imposed against Qualcomm and its attorneys for not upholding professional standards by trying to hide over 30,000 emails critical to the outcome of the case. David goes on to say that:
because lawyers will be held responsible for their clients’ production of documents, lawyers must go to the site where documents are kept. . . . the lawyer must understand what the client did and then verify it.
Once again, this comment (in my opinion) verifies the need for trial lawyers to obtain the assistance of e-discovery specialists in any large case involving complex computer systems. Counsel must not only understand what the client did, they must be sure their actions complied with the Rules and met the minimum forensic standards for admissibility as evidence. Also, they need to have the backbone to correct a client who screws up, or, as in the Qualcomm case, wants to hide the ball.
David, who is himself a trail lawyer specializing in real estate litigation, does not talk about retaining e-discovery experts, but again suggests use of checklists. Here is Kristine Roberts’ report of his comments:
Calderas recommends that to avoid e-discovery violations, attorneys should use checklists to “ensure that you apply a consistent protocol in any new matter—for example, that you routinely instruct your client to preserve evidence, that you identify witnesses with knowledge, that you determine how the client maintains its documents, that you ask the right questions regarding where potential documents may be located, and that you ask about additional relevant documents and potential witnesses in every witness interview.” Calderas also suggests that litigators enter into agreements with opposing counsel regarding what search terms will be used, the places at which relevant evidence may be found, and the persons whose files will be searched.
This is all good advice to be sure, but is it sufficient in a complex case involving large amounts of ESI?
ABA’s Checklist to Avoid Qualcomm’s Fate
The article concludes with a checklist summarizing the recommendations of the ABA leaders on how, as they put it, “to avoid Qualcomm’s fate.”
1. Use checklists and develop a standard discovery protocol.
2. Understand how and where your client maintains paper files and electronic information, as well as your client’s business structures and practices.
3. Go to the location where information is actually maintained—do not rely entirely on the client to provide responsive materials to you.
4. Ensure you know what steps your client, colleagues, and staff have actually taken and confirm that their work has been done right.
5. Ask all witnesses about other potential witnesses and where and how evidence was maintained.
6. Use the right search terms to discover electronic information.
7. Bring your own IT staff to the client’s location and have them work with the client’s IT staff, employ e-discovery vendors, or both.
8. Consider entering into an agreement with opposing counsel to stipulate to the locations to be searched, the individuals whose computers and hard copy records are at issue, and the search terms to be used.
9. Err on the side of production.
10. Document all steps taken to comply with your discovery protocol.
Once again, all good advice, so long as you understand the limitations of such general advice. Further, if the point is to avoid another Qualcomm, mandatory ethical training should be included, along with the admonishment to walk away from any client who would have you hide evidence or lie to the court. There is no price on a sound night’s sleep.
Limitations of Checklists
The above ten step checklist is, in my view, only helpful as a general starting point. Law firms should establish much more detailed forms and procedures to do e-discovery right. I know I have personally spent weeks doing just that. My firm, like a few others who have made such efforts, naturally holds such information as a trade secret. You can of course find many checklists online from a variety of sources, but they will all be generalized, and serve only as a starting point for further research, or teaser for retention of services. For one pretty good example, see the e-discovery checklist included in the Association of Corporate Counsel website. The same essentially holds true for form-books and commentaries. No complex area of law can be solved with simple forms and checklists, although again they can be helpful as a starting point. See for example, Electronic Discovery and Records Management Guide: Rules, Checklists and Forms 2008 ed. by Jay E. Grenig, Browning E. Marean and Mary P. Poteet, and Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics (2008-2009) by Michael Arkfeld. This is especially true of e-discovery which is a combination of the fields of law and technology. In e-discovery, the facts are always different and rapid changes in technology quickly makes yesterday’s solution obsolete.
Even if the detailed forms and checklists developed by a few experts for private use were no longer confidential, these checklists would not, by themselves, do that much good. They are meant to be used with the assistance of the experts who created them. Forms and checklists require background knowledge and team work with experts to function properly. They work best as a general guide, and reminder not to overlook necessary steps. They also let you know when and how to call for help. Sometimes just knowing what you do not know is half the battle. Step 7 in the above ABA checklist recognizes this in recommending employment of an e-discovery vendor. But be careful in relying too much on some vendors, especially those who are little more than copy-shops and have no in-house legal input.
The truth is, without experience and occasional guidance, simple checklists alone can be counter-productive. They can easily be misunderstood and provide a false sense of confidence. Sometimes it pays to be a little worried and concerned. I am sure that is one of the lessons Qualcomm’s former lawyers have learned. Perhaps the great poet Alexander Pope, whom I have quoted before, said it best in his An Essay on Criticism (1709):
A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.
As usual, you have nailed the issues. I was especially happy to see your emphasis on checklists as an adjunct to work by those who appreciate the variability of the environments and relative importance of the items.
Checklists are a bit like bullet points in a PowerPoint. Properly constructed, they are simply a mnemonic anchoring or triggering richer or more precise information from from the presenter. Bullet points are not a substitute for a good presenter, only for a bad one.
To create a checklist that supplants expert knowledge and experience demands such an extensive decision tree that it would be tantamount to creating an expert system. Feasible, but nothing at all like that which the ABA contemplates.
Another aspect of checklists that hasn’t been addressed is their ability to forster a perception of negligece even when there has been no malfeasance. Many forensic examiners are loathe to use checklists lest they be taken to task for anything omitted. There are times when you can properly skip certain steps on a checklist if you can defend the decision and fully appreciate its consequences. That’s not a view I want my pilot to follow, but if we pursued e-discovery in the same way as we fly airplanes, litigation might never get off the ground.
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