Shocking, but true! The country’s leading trial lawyers now admit that e-discovery is an “extraordinarily important … fact of life that is here to stay.” They understand that written evidence is no longer flat. It has digital depth wherein metadata, searchable indices, and other electronic mysteries reside.
The American College of Trial Lawyers, a group whom I have written about many times before, has recently reversed itself (without admitting it of course). These elders of the trial bar have subtly revised many of their anti-e-discovery, old-paper-world, pre-digital positions. They now accept the need for electronic discovery. They are even beginning to realize that they are part of the problem, urging other trial lawyers to go to workshops to obtain “technical knowledge about the issues involved in electronic discovery.” They are starting to take responsibility for the e-discovery crises, instead of blaming the new rules and judges. They now urge reform (who doesn’t), not abolition. As I will point out, many of the reforms they urge are good, but do not go far enough and fail to adopt the key reform needed of discovery cooperation. Instead, they still want judges to fix things for us, while at the same time admitting this would require a substantial increase in judicial funding, which is an increase that I support, but do not see happening any time soon.
Yes, Grandpa Simpson has stopped waving his clenched fist at cloud computing. He has opened his hand, apparently ready to shake with, not at, us geeky e-discovery types. Don’t get me wrong, the trial lawyers (especially the ones my age or older) are still mad as hell. Who can blame them? The world has changed way too fast and discovery is a mess. But at least the leaders of the trial bar appear ready to start a real dialogue, to go back to school, and start to figure it all out.
The Prior Interim Report and Survey of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System
Six months ago I wrote about the Interim Report & Litigation Survey of the prestigious American College of Trial Lawyers. My article was entitled Trial Lawyers Turn a Blind Eye to the True Cause of the e Discovery Morass. Although I praised part of the report, I was highly critical of the e-discovery aspects, especially the parts blaming almost everything wrong with the litigation today on electronic discovery, the new Rules, and our judges. Like the small child in the story of The Emperors New Clothes, I pointed out the obvious: that the real culprits here were the trial lawyers themselves. They were not clothed with the technical competence needed for e-discovery. Their inability to practice law in the Twenty First Century was, and still is, one of the main reasons e-discovery has become too expensive and risk-filled.
Although my opinions were controversial outside of e-discovery, most everyone specializing in this area agreed. I wrote about the problem of trial lawyer competence again in Why E-Discovery is Ruining Litigation in America and What Can Be Done About It. I quoted the immortal words of cartoonist Walt Kelly who said in Pogo: “We have met the enemy and he is us.” Pogo got it. Now it appears the trial lawyers do too.
Most lawyers do not understand e-discovery and all of this ESI stuff. Deep down, like a naked Emperor, they are embarrassed by this. They know full well that their clients all create and store their writings on computers. Lawyers know that these ESI documents are key evidence in most cases, but they are unable to handle this evidence, even though “writings” are supposedly their stock in trade. They know they should get this evidence out of the computers and into the court rooms, but they don’t know how. Trial lawyers, long the Emperors of the legal profession, were, at first, too embarrassed to admit their own inabilities. They found themselves lacking knowledge, dressed only in the flimsy garb of e-discovery vendor smoke and mirrors. Strutting around naked like that can be very embarrassing. It also makes you vulnerable to the flatterers and connivers, those who promise to make you look good, if you just pay the price.
Most trial lawyers today are still incompetent in e-discovery, but at least now their leaders are finished with the magic clothes. They are starting to admit the own technical nudity. There is no shame in this. It is not their fault. The world has changed from paper to digital writing at an alarming rate. The technology and information explosion is unprecedented in human history. They are trial lawyers, damn it, not information scientists, librarians, IT geeks, or forensic engineers. If they had the desire or talent in math and science needed to solve the deep riddles of computers, they would never have gone to law school in the first place. They would have gone to med school and made some real money. But seriously, with a few noted and very recent exceptions (Georgetown and U.F. come to mind), they do not teach this stuff in law school. Where were they supposed to learn it to begin with?
The CLEs on the subject have proven inadequate, even when trial lawyers bothered to sit in. I do not blame them for avoiding these events, or looking at their blackberries in the back of the room, instead of paying attention. Many of the e-discovery CLEs I have attended have been hopelessly boring or vendor-driven and slanted. Others have been long on scare and horror stories and short on useful information. Many of them, especially the “pay-to-play” types are “the blind leading the blind.” I will not go near them. The trial lawyers have, for the most part, avoided these geek-fests. They are instead focused on honing the other skills needed for dispute resolution, hoping that discovery would somehow take care of itself, or be handled properly by the kids fresh out of law school (it was not). But now all that appears to have changed. The trial bar has awakened and woe unto the sneaky vendors, consultants, and others who have been deceiving them with whole cloth. An angry ostrich is a dangerous animal.
It is about time. The first reaction to e-discovery of these otherwise very talented and bright attorneys in the trial bar was, in my opinion, a tad immature. Most of them will admit that in private and I do not really blame them. The complexity and difficulty of all this can be overwhelming. That is why the Interim Report in some instances reminded me of Grampa Simpson shaking his fist at the clouds. I know that deep down they wish it would all just go away, that everyone would go back to paper letters and phone calls, and stop all of this annoying email, texting, and who knows what else. The delusional ostrich approach has always had a strong appeal to everyone.
But the trial bar is a smart bunch and most are usually very responsible. They appear to have heard the criticism, not just from me, but from a host of others.
The Final Revised Report
The Final Report of the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System was adopted on February 25, 2009. It contains several substantial revisions to the lame Interim Report. The revisions show that the trial bar has moved on to a more mature reaction to the information revolution. The leaders appear to have a new, more positive attitude. They are waking up and beginning to take responsibility. I congratulate them for that.
If you have read my prior articles on this group, you may be having a hard time believing that our criticism was heard and the College has made such a dramatic shift in just six months. Let me state my case. First of all, the Final Report quotes extensively and approvingly from The Sedona Conference. Even more incredible, the Final Report includes the Sedona Principles, both the U.S. and Canadian versions, as two out of the three Appendixes to the report. These are the same Sedona Principles that I include on the right side of my blog and whisper before I go to bed each night. The only difference is that I include the copyright notice, and obtained permission first, as required by law. But, at least they endorse them by inclusion and I, for one, am impressed.
Next, consider the following statements from the Final Report at pages 15 and 16:
In order to contain the expense of electronic discovery and to carry out the Principle of Proportionality, judges should have access to, and attorneys practicing civil litigation should be encouraged to attend, technical workshops where they can obtain a full understanding of the complexity of the electronic storage and retrieval of documents.
At a minimum, courts making decisions about electronic discovery should fully understand the technical aspects of the issues they must decide, including the feasibility and expense involved in complying with orders relating to such discovery. Accordingly, we recommend workshops for judges to provide them with technical knowledge about the issues involved in electronic discovery. We also recommend that trial counsel become educated in such matters. An informed bench and bar will be better prepared to understand and make informed decisions about the relative difficulties and expense involved in electronic discovery. Such education is essential because without it, counsel increasingly will be constrained to rely on third-party providers of electronic-discovery services who include judgments about responsiveness and privilege among the services they provide, a trend we view with alarm.
Ok, it is true they mention judges first as needing training and couch all of e-discovery education with the cloak of Proportionality, but still, they admit that trial lawyers should also go back to school, or workshops, or whatever. Not only that, they recognize the need for a “full understanding,” not just a quickie CLE superficial understanding, of “the complexity of the electronic storage and retrieval of documents” and “technical knowledge about the issues involved in electronic discovery.” If the trial lawyers really do that, it will be huge because this is, in my view, the core problem. Of course, once they gain a full understanding of storage and retrieval, they will realize the need to also gain a full understanding of a host of other critical issues, such as efficient review and evidence authentication. They may even be convinced to give up their precious Bates stamps and start to use algorithmic hash instead. Losey, HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007). They may even begin to understand the need and importance of attorneys who are e-discovery specialists. See the Conclusion to Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass.
The Final Report also includes an important insight that “such education is essential because without it, counsel increasingly will be constrained to rely on third-party providers of electronic-discovery services.” That is exactly what I have been saying for years. They view this development with alarm. So do I. The dog has been wagging the tail for far too long and that is one reason the costs of e-discovery are out of control. This is not the fault of vendors, although some have been like the Emperor’s tailors. A vendor will naturally be cautious and look to legal counsel’s leadership in the proper risk/reward balance of what to review, and how aggressive to be with search culling. Without knowledgeable lawyers at the helm, the vendors always err on the side of caution, sometimes extreme caution, and as a result, the clients often end up paying for the review and production of way too much information.
The Final Report then goes on to make a frank admission of why trial lawyers are “encouraged” to go back to e-discovery school (assuming they can find one):
Likewise, trial counsel are often uninformed about the technical facets of electronic discovery and are ill-equipped to assist trial courts in dealing with the issues that arise.
Want more proof? Well here is the clincher at page 16:
Electronic discovery, however, is a fact of life that is here to stay. We favor an intensive study to determine how best to cope with discovery of this information in an efficient, cost-effective way to ensure expenses that are proportional to the value of the case.
Ok, so it is a tad grudging – how to “cope” with it – but it talks again about intensive study (something Sedona and others have been doing for a long time), once again implicitly admitting the need to learn. The truth is, the Final Report includes many gratuitous negative comments (like my own sarcastic remarks, only not funny). For instance, the Final Report includes these learned comments at page 2:
Electronic discovery, in particular, needs a serious overhaul. It was described by one respondent as a “morass.” Another respondent stated: “The new rules are a nightmare. The bigger the case the more the abuse and the bigger the nightmare.”
Yet another jab at how awfully expensive and burdensome e-discovery has become contains an important admission at page 15:
Although electronic discovery is becoming extraordinarily important in civil litigation, it is proving to be enormously expensive and burdensome.
So when you ignore the negative tone, which is obviously needed to placate the angry ones who are naturally upset about having to practice law in a high-tech world they barely understand, you see that they now understand e-discovery is an “extraordinarily important … fact of life that is here to stay.” This is major progress.
The Trial Lawyers Supposedly Radical Recommendations
The Final Report goes on to make a series of principles and related reforms they contend are needed to save the American system of justice:
Some of the Principles may be controversial in some respects. We encourage lively and informed debate among interested parties to achieve the common goal of a fair and, we hope, more efficient, system of justice. We are optimistic that the ensuing dialogue will lead to their future implementation by those responsible for drafting and revising rules of civil practice and procedure in jurisdictions throughout the United States.
I am not going to review all of their principles, just a few that I found especially interesting and applicable to e-discovery. I will, however, try to comply with their request that the debate be lively.
The Final Report calls for the reform of notice pleading. This proposal has been around for many years in the e-discovery community and promoted by many, including especially Anne Kershaw. Anyway, here is what the Final Report says about it at page 5:
Notice pleading should be replaced by fact-based pleading. Pleadings should set forth with particularity all of the material facts that are known to the pleading party to establish the pleading party’s claims or affirmative defenses.
Most everyone in e-discovery, excluding only the most hard-nosed plaintiffs lawyers, agree with this one. How are you supposed to know what ESI to preserve, much less produce, if you cannot determine from the pleadings what the case is all about. I have written about this before in What’s Wrong With This Picture? Star Trek Lessons for e-Discovery. So here is a strong point of agreement with the American College of Trial Lawyers.
Here is another. At page 7 the Final Report states:
Proportionality should be the most important principle applied to all discovery.
That is one of the mantras of The Sedona Conference and all knowledgeable e-discovery lawyers. Glad to see the College gets it too. Hopefully they will learn the many skills needed to embody the Proportionality Principle in e-discovery, including the all important Sedona Conference Cooperation Proclamation, a principle conspiciously absent from their report. We need dialogue with them on this point so that they can understand how cooperation and proportionality go hand and hand in the world of e-discovery.
The Final Report states, at page 9, that the following is both its most “radical” proposal and its most “significant:”
After the initial disclosures are made, only limited additional discovery should be permitted. Once that limited discovery is completed, no more should be allowed absent agreement or a court order, which should be made only upon a showing of good cause and proportionality.
They go on to explain:
This Principle changes the default while still permitting a search, within reason, for the “smoking gun”. Today, the default is that there will be discovery unless it is blocked. This Principle permits limited discovery proportionately tied to the claims actually at issue, after which there will be no more. The limited discovery contemplated by this Principle would be in addition to the initial disclosures that the Principles also require. Whereas the initial disclosures would be of documents that may be used to support the producing party’s claims or defenses, the limited discovery described in this Principle would be of documents that support the requesting party’s claims or defenses.
I personally think this proposal might work, but only if coupled with another truly radical counter-balancing proposal that they did not make. This is a proposal I have made many times before: require initial disclosure of all relevant information known to a party, not just the relevant information that supports their case. In other words, require a full and fair disclosure, not just one-sided disclosure. Require disclosure of evidence that both supports and harms your case. If you know of a smoking gun, evidence that harms you case, go ahead and produce it along with the evidence that supports your case. Put all the cards on the table, the good and the bad. Make that mandatory. Only this measure can take the excessive costs, delay, and gamesmanship out of e-discovery that everyone, including the trial lawyers, profess to abhor. (“At present, the system is captive to cost, delay, and in many instances, gamesmanship.” Final Report pg. 24) That would be a substantial reform, yet the College of Trial Lawyers does not go that far. Instead, they only recommend disclosure of evidence that supports your case, something the federal rules have long required.
In fact, even though the College of Trial Lawyers criticize the new federal rules for e-discovery and say they provide no real guidance, many of their other principles and recommendations are already embodied in the federal rules. For instance, the following supposedly new advice will seem very old-hat to anyone who knows the federal rules that went into effect in 2006:
Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of its cost among the parties. Pg. 12.
We call on courts to hold an initial conference promptly after a complaint is served, for the purpose of making an order with respect to the preservation of electronic information. In this regard, we refer to Principle 5 of the Sedona United States Principles for Electronic Document Production. Pg. 13.
Initial pretrial conferences should be held as soon as possible in all cases and subsequent status conferences should be held when necessary, either on the request of a party or on the court’s own initiative. Pg. 18.
Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens. Pg. 14
Although the Final Report does not give due credit to the new federal rules, the College appears to realize that proportionality is already addressed in the rules. Still, they go on to criticize new Rules on e-discovery as inadequate and traps for the unwary:
Although the Advisory Committee on Civil Rules attempted to deal with the issues in new Rule 26(b)(2), many of our respondents thought that the Rule was inadequate. The Rule, in conjunction with the potential for sanctions under rule 37(e), exposes litigants to a series of legal tests that are not self-explanatory and are difficult to execute in the world of modern information technology. The interplay among “undue cost and burden,” “reasonably accessible,” “routine good faith operation,” and “good cause,” all of which concepts are found in that rule, presents traps for even the most well-intentioned litigant.
Sorry, I disagree with the College there. The new rules are pretty good and provide clear guidance to those with “technical knowledge about the issues involved in electronic discovery.”
Many of the other principles recommended involve a much more active judiciary with hands-on involvement with discovery of all forms, including especially e-discovery. This suggests a move towards the Civil Law model used in Europe and elsewhere where judges control discovery, not lawyers. The College seems to recognize that these suggestions are not practical in our current system:
These Principles call for greater involvement by judges. Where judicial resources are in short supply, they should be increased. This Principle recognizes the position long favored by the College. Judicial resources are limited and need to be increased.
These proposals by the College of Trial Lawyers for an expanded and much more active judiciary are truly radical. They might work, but only if the American public is willing to devote substantially more resources to the judiciary. Indeed, for this to work, the number of judges and support staff would probably have to be doubled and the pay increased. I do not think there is the political will for this yet in the United States, especially in the current economy. Since many of the proposals here hinge on such a fundamental change, I do not take them too seriously. I am not saying they are a bad idea, just that America is not prepared to fund them.
No, I think we are stuck with lawyer controlled discovery for the foreseeable future. That is why strategic cooperation and full disclosure of all relevant facts, both good and bad, are imperative. The College’s reliance on judges instead is misplaced.
Electronic discovery has been called the “nerds revenge” of the legal world. If so, the trial lawyers are the cool fraternity boys. They stuck with their paper chase way too long because that is what they knew. Even though paper went out with the 90s, they kept pretending their flat-earth skills were relevant.
Now they can deny the truth no longer. The evidence is in the computer and only the nerds know what to do. When the frat-boys and girls play with the damn things, they have to hire vendors to show them what to do. Then, they end up running up ridiculously high review and production bills. The managing partners and vendors do not mind the high fees, but the trial lawyers do. Yes, the trial lawyers themselves also benefit monetarily from the system; but still, they do not like it. They have to answer to the angry clients asked to pay these exorbitant bills. They also have to answer to the angry judges who have little sympathy for incompetence, and its twin sister “aggressive gamesmanship,” used to try to mask inadequacies. But worst of all, from their point of view, the discovery costs and risks make it even more unlikely that they will get to go to trial. They are tired of all this. They see the justice system that they truly love falling apart because of this nonsense. They want peace with the nerds. They want to break their dependencies with the vendors and regain the competence they had before the information revolution. This Final Report shows this.
The question is, do the nerds care, or have they had sand kicked in their face one too many times? The fist has stopped shaking at the clouds and now reaches out for help. But will they get it? Will the nerds-that-know put on the technical workshops that the College of Trial Lawyers have called for? That remains to be seen. The nerds might want to kick some sand of their own and rake in the riled clients. They may be perfectly happy to continue to let the tailors teach and the blind lead. Even if some are willing to teach, is it too late for most of the trial lawyers in practice today? See the Conclusion to Why E-Discovery is Ruining Litigation in America and What Can Be Done About It.
I will give the last words to the trial lawyers, after all, I spent most of my career in their shoes. The Final Report ends with these strong words that we should all take to heart:
Our civil justice system is critical to our way of life. In good times or bad, we must all believe that the courts are available to us to enforce rights and resolve disputes – and to do so in a fair and cost-effective way. At present, the system is captive to cost, delay, and in many instances, gamesmanship. As a profession, we must apply our experience, our differing perspectives and our commitment to justice in order to devise meaningful reforms that will reinstate a trustworthy civil justice system in America.