Continuation of my Interview by Mary Mack (see below for Part One).
The Bray & Gillespie Case
MARY: Ralph, let’s talk about some of those cases where lawyers are getting in trouble, the Bray & Gillespie v. Lexington Ins., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) case for example, that you and I were talking about before the show. You said that you thought that it might be more important than Qualcomm.
RALPH: No, but I think it’s up there. <Secret thought to self: Nothing is as bad as Qualcomm.> I’ve heard other people say it may be more important than Qualcomm, and I won’t name names, unless they’re listening and want to admit to it, but I think it is very important. <Let’s liven this up a bit before we start attacking poor trial lawyers again.> By the way, looking at the slide here – how many of you have ever seen an ostrich with teeth like that? Can you tell me what variety of ostrich that is? Tell us your answer and we’ll also recognize your incredible scientific acumen.
You know when an ostrich – if somebody pretends like something doesn’t exist and then they have to pull their head out of the sand and they’re faced with e-discovery, they have no choice. But they don’t really know what to do about it, because they haven’t taken the time to learn the subject and they just don’t like computers to begin with. When they’re put in a position like that, it’s kind of like a cornered animal or a wounded animal. They get vicious. They get really mean, sort of like an ostrich, you know, if they had teeth like this could be mean. That’s what seems to be happening here with some trial lawyers when they’re forced to do e-discovery. They do things that I can’t imagine they would otherwise be doing in other areas of their practice.
In Qualcomm, we all know what happened on that, where they were lying to a judge and hiding hundreds of thousands of emails, critical evidence. Well Bray & Gillespie v. Lexington Insurance is a case along the lines of Qualcomm involving misconduct, but different and less severe than Qualcomm. <Not even the same league really, but it is a good case.> I think it is important for the reason that in Bray & Gillespie the misconduct was entirely that of the lawyers, not the parties. The lawyers for Bray & Gillespie – not Bray & Gillespie itself, but the lawyers, stripped metadata from a production. Instead of producing native files as requested, they produced dead flat images with no indices accompanying it so that these files could not be searched. We’re talking about 200,000 different files, 100,000 e-mails, 100,000 attachments, not knowing what attachments went with what e-mails, not being able to search anything and having all of the critical metadata not included with the production. Even though the attorneys had that metadata and had used it in their review, they decided to change the evidence and only produce the flat image to the other side. That’s what caused the insurance company defendant and their lawyers to cry foul (no pun intended) and that’s what caused the judge to issue a biting 51 page decision which called to task the misdeeds of the plaintiff’s counsel here and sanctioned the law firm and the individual lawyers for their misconduct.
MARY: And so, Ralph, how much of this do you think was intentional and how much of this do you think was the attorneys not understanding how the technology worked or the process worked?
RALPH: <Now that is not a question I want to answer in public. Better change the subject.> By the way, we got some good answers: Scott – What is a Photoshop ostrich? That’s right and here’s another: Danny K. – What is an emu with dentures? Very good. Ostriches don’t have teeth though, so that was artificially added in for those of you who were wondering, and you guys got it right.
MARY: Yes, and we’re going to call that presenter misconduct, right.
RALPH: <By asking that question, yes.> It fooled me at first. I really thought maybe ostriches were mean, vicious beasts. But no, that’s Photoshop.
And so, what was that great question again, Mary? I forgot it already. <Yeah right, but maybe she did?>
MARY: I was asking – how much of the Bray & Gillespie case do you think was derived from the lawyers misrepresenting or the lawyers not understanding?
RALPH: <Drat! That woman has a mind like a vault. Forgets nothing.> Well, this we’ll never know. <Thought you had me there, didn’t you?> I do know that there were two evidentiary hearings that Magistrate Judge Karla Spaulding in Orlando held to try to get to the truth of things. <Not many judges would take the time to do that!> Two hearings where the primary testimony at those hearings concerned what went on at the Rule 26(f) meet and greet conference. Now just think of that. <Scary huh?> These lawyers were put on the stand, sworn, and gave testimony about what happened when they talked to the other side at the meet and greet conference. Specifically, what did they talk about and what agreements did they reach concerning form of production? You can imagine the reason she did that is she was getting diametrically different stories about what went on. <Boy they they pick the wrong judge to try that with.> So the next time you approach a 26(f) conference cavalierly, without a lot of worry or preparation, just remember it might someday come down to you having to testify before a judge as to what happened. So, you know, by all means take good notes and don’t try and “stretch the truth” about what the other side did or did not agree to.
MARY: So, Ralph, there was no form of production then specified in a Form 35 or anything like that?
RALPH: Yes there was. <What is a Form 35? She must have meant a request for production.> Part of the opinion is construing what it meant. It was pretty clear to me and to the judge that the defendant’s Request For Production intended a native file production, “ordinarily maintained.” There were arguments made by plaintiff’s counsel that it didn’t mean that. Those arguments were rejected. There were arguments made by plaintiff’s counsel that oh, they agreed to accept this in the conference. <Yeah, right.> Those arguments were rejected after two evidentiary hearings. By the way, those evidentiary hearings, according to the judge’s opinion – of course, I have no personal knowledge of any of this or anything, it’s just based on what I read in that opinion – the successor attorneys for the plaintiff who were then in a new firm blamed the earlier attorneys for the plaintiff on any misconduct. That’s what led to the second evidentiary hearing where the earlier attorneys made a surprise appearance at the second hearing and said that that was not true and denied the allegations trying to put all of the blame on the first lawyers. <I would have liked to have seen that hearing.>
Also, there was expert testimony given – at least three experts – as to what was going on with the load files, the metadata, the stripping of the metadata, what information you need to have metadata be searchable, be “reasonably usable” under the Rule 34(b). I think it’s a good opinion in that it cuts through all of the incredible amount of smokescreens going on here, does it in great detail – 51 pages – and I think is a lesson on what not to do. It’s a lesson in what happens when you don’t cooperate and you start to make a fight over what’s silly technical matters that should simply have been stipulated to and let the parties focus on the real issues, the right fight, and that is: what does all this (the facts) mean.
MARY: Well, thanks for bringing that case to our attention and walking us through.
MARY: You have a passion for legal education and do you want to talk a little bit about how your book is being used in classrooms and your interview with Judge Scheindlin around her new casebook?
RALPH: The interview with Judge Scheindlin was really very interesting. A live interview like this one, no preparation. Well, I shouldn’t say that. You and I actually prepared a little. But with the one with Judge Scheindlin, I mean she took a break during – while the jury was out for lunch – never even talked to her before and we did almost an hour interview there. Getting her views on education, which I then posted on my blog, and her new book that she wrote with the Sedonda Conference and civil procedure Professor Daniel Capra, entitled Electronic Discovery and Digital Evidence: Cases and Materials (West 2009). This is the first case book for use by law school. It allows a civil procedure law professor to teach e-discovery, even though they have had no personal experience with it. By using Judge Scheindlin’s and The Sedona conference books, they would be able to teach this in a law school.
One of the problems – the competency problem that I alluded to earlier — is that the trial lawyers have never actually done this or been trained. Of course when they started practicing, most of them 30, 40, 50 years ago, there was no such thing as electronic discovery. But secondarily, even the attorneys that are now being hired out of law school, 98% of them let’s say – that’s just picking a number off of the top of my head – but almost all of them have not received any instruction on electronic discovery in law school.
A friend of mine, Bill Hamilton, who I now co-teach an electronic discovery course with at University of Florida law school, he calls that a shocking disgrace, a scandal, that the academic community has fallen so far behind that they’re not even teaching what is a critical aspect of practice today, one that the College of Trial Lawyers admits is important, and it’s not even being touched upon in most law schools. Now there are starting to be exceptions. My school – the University of Florida – is mentioned. <Go Gators!> Georgetown is also leading the way. There’s a number of other schools —
MARY: John Marshall is one of them.
RALPH: Yes they are. They’re just beginning to teach it. Bill Hamilton selected and used my book before I even met him. As soon as it came out, my first book, e-Discovery: Current Trends and Cases, he selected that as one of his textbooks, along with a couple of others. He’s since dropped the others and is primarily using my book, mainly because it serves the purpose, particularly with an adjunct professor who has experience. It’s a book that students like.
I don’t write my books as dry textbooks. I write then for a general intelligent reader, not necessarily an expert at all. It’s written to be read by techs as well as lawyers – and, you know, it’s not just what Losey thinks about things. In fact, my opinion is usually a small part of what I write about. I’m mainly writing about what other people say, typically agreeing with them. So I’m giving a diversity of views, not just my own view, but a variety of views, particularly that of the leading judges talking about their opinions. It’s not just a one dimensional kind of approach.
MARY: Good. So before we run out of time, I know you have some thoughts on the Fannie Mae litigation.
Malcolm Gladwell and the 10,000 Hour Rule
RALPH: Jason Baron just told me about this last weekend. I started reading it. But I recommend everybody read it, particularly for the “10,000 hour rule.” Because I think that rule applies to e-discovery, too. There is no rush and as much as I’d like to think that, Mary, you and I are gifted, you know, we’re not going to be able to really teach this stuff in an hour, or even in a semester in law school. To really learn a subject takes about 10,000 hours, which means it’s going to take five years of intensive study for people to really get it. <Hope this is not coming across as too pessimistic here.> I just – you know, I offer that as both a reality check, but also a promise of hope in that it doesn’t necessarily require special talent or gifts. What it requires is spending time on things, doing what we lawyers are trained to do and that is practice, practice, practice. Gladwell shows that is how you get good at anything, including e-discovery.
MARY: I would say that to become an expert or to be an outlier, it’s the 10,000 hour rule, but that it doesn’t take five years to get competent, I would say.
RALPH: Right. <Not so sure about that distinction, but I’ll go along with it, so long as I make my point about the need for hard work and the danger of instant knowledge, pseudo-experts, a little bit of knowledge, etc.> But to really become an expert where they don’t necessarily need to hire somebody like you or me, that they’re their own expert, I think it does. There are no shortcuts to mastery of a subject, which, you know, the book talks about. Of course, you can spend 10,000 hours and not be particularly gifted and you’ll be an expert. But if you happen to have gifts in the area too, and the timing is right, then you can become, you know, like Bill Gates or the Beatles or that sort of thing, a outlier. <Too bad I haven’t actually finished reading the book so I could truly know what I am saying here. Better shut up.>
MARY: Yes. And I agree with you on the number of hours necessary to get in there.
Fannie Mae: Who cares what It costs? Hey, I do!
RALPH: The next slide was the Fannie Mae case, one of my favorites. I assume everybody knows about this case? If you don’t, check it out. In re Fannie Mae Securities Litigation, _ F.3d _, 2009 WL 215282009, U.S. App. LEXIS 9 (D.C. App. Jan. 6, 2009). It’s not so much the wording or what the court says, it’s what the court doesn’t say. I mean, the court affirmed a $6 million expense to respond to a subpoena by a company that wasn’t even a party to litigation. It cost them $6 million to restore and search and produce e-mails that were originally just on a back-up tape.
What the Circuit Court for the District of Columbia – what the appeals court should have said, in my opinion, is they should have at least said or footnoted that this was a lot of money and it’s too bad that this happened. They didn’t say a thing. They just said that the district court was within its discretion to require it.
When you dig deeper, the reason that the government agency had to spend $6 million to respond to a subpoena is just a series of errors of not knowing what they were doing. I don’t think there was any ill-will here. They certainly weren’t trying to run up a bill. It was just a simple matter of making mistake after mistake, the fundamental mistake being they agreed to do something, they agreed to make an electronic discovery task, without having any idea what it cost.
MARY: They agreed to open-ended search terms.
RALPH: Yes, and of course they later denied it. They agreed to do something on the spot in a hearing with the judge breathing down their neck, putting pressure on them. They agreed to restore, search, and produce emails from a backup tape and they did it without having a clue. I’m sure they were shocked to later find out it ended up costing $6 million.
So, you know, this is a rule I tell everybody. Don’t ever agree to anything until you have an idea what it costs. I don’t care what kind of pressure the judge is putting you under, you have to respectfully say you need to have a better idea what it costs. And don’t come to a hearing like that without knowing. Be prepared. Know what you’re doing.
What happened in Fannie Mae certainly could have been avoided had the costs been known and disclosed in advance. I don’t think the district court judge would have required this kind of effort and expense had the court been advised in advance what it would cost.
MARY: Right. With metrics backing it up.
RALPH: Yeah. And this – you know the graph here I prepared in the slide (above). It’s an actual example from a case I did last year, all names removed, etc. I’m sure that Fios does similar kinds of things, initial case assessments, where you get an idea of costs for the discovery. I mean the first question ought to be “What’s it all going to cost?” and then you kind of work backwards.
You know, the famous line I always think of, Jack Nicholson in that movie A Few Good Men, said, “You can’t handle the truth.” Well, now the line goes, “You can’t afford the truth” at least not the whole truth and nothing but the truth. It costs too much. So you’ve got to figure out how much of the truth can you afford to get. We have got to educate the courts and ourselves and opposing counsel that it is impossible in today’s modern businesses and in today’s world to get all relevant e-mails on any issue. You’re only going to get a certain amount of them that is acceptable to proceed forward, one of the prime criteria of which is what does it cost.
Judge Scheindlin and I had an interesting little exchange on this in our interview where she made the point that she doesn’t care what it costs, if the party being requested hasn’t raised an objection to it, but instead on their own just decides that they’re not going to do a complete search and production and they don’t seek relief from the court. She thinks that if they limit the search on their own, without court permission, then it’s too late to come back later and it doesn’t matter what it costs. <I hope I got that right.>
Now personally, I think that’s being a little extreme, but that is a common attitude of the federal judiciary. <Oh no. Did I just say that? I hope she does not mind a little disagreement.> Her point was not that she’s going to require $6 million subpoenas, her point was to come to the court for relief. Tell us about it. Do your homework up front. Figure it out and say that if we were to literally reply to this discovery request, it’s going to cost us, you know, $2 million. Figure it out and then take this information and try to get the other side to work it out and be reasonable. If they’re not reasonable, seek relief from the judge. Then you’ll get it.
But don’t come back like they did in Fannie Mae litigation, after they did it and then seek relief. The court will say it’s too late. So, you know, that’s why it’s important from the get-go to understand what any discovery request might require and start immediately negotiating with the other side to make it reasonable. I mean there’s no reason aside from it being a special-importance case, like a civil rights case, but in your typical commercial case – if the case is over money — and on its best day $1 million is at issue, there’s no way you should be spending $500,000 to search and produce e-mail. I mean, that’s crazy and the rules don’t require it. <Yes, really crazy man, like the lady below. Yet many untrained lawyers still don’t know any better and vendors are loving it.>
MARY: So this is what you’re suggesting that parties do in the meet and confer and then bring to the scheduling conference if they can’t agree? Where is the mechanism for that, Ralph?
RALPH: That’s exactly right. That would be the way to do it, if not earlier. Of course, in order to have those discussions in your meet and greet or earlier communications with the lawyers, you need to be prepared to discuss this and several other issues. For instance, you may also want to be talking about preservation, especially if they sent out an obnoxious over-burdensome preservation notice, you might want to talk about that too.
There’s a lot of things that need to be talked about. That’s cooperation. It’s key. And The Sedona Conference work on the Cooperation Proclamation is something everybody’s got to understand and get behind. This is not wimping out, this is not daydreaming, this is what I call strategic cooperation. In order to make the system work and protect your clients, you’ve got to cooperate.
MARY: So, Ralph, in Fannie Mae this is a third-party subpoena, or a non-party subpoena, I should say. Where in the federal rules is there room for the non-party to get involved.
RALPH: Well, they should file a motion to quash the subpoena. There are procedures for a non-party if they’re served with a subpoena to get protection. If they don’t have a dog in the hunt, as we say in the south <what does that literally mean, anyway?>, or they don’t have any interest in the outcome of the litigation, the burden upon them should be even less than upon a party. You still may be required to spend some money to respond to a subpoena. If it is relevant information and they can’t get it otherwise, you may have to spend some money to respond to the subpoena. There may be some burden that’s reasonable to impose upon non-parties just so our system of justice can work. But it’s got to be, you know, it’s got to be a reasonable amount and obviously $6 million is absurd. <Duh!> It becomes a closer question when it’s $5,000. To an individual, that might be way too much <I’m not paying it!>; but to a large corporation, that may be very acceptable.
Paralegal Asks a Good Question
MARY: Mmm-hmm. So Ralph we have a question – and I’m going to read it verbatim. It says: “What can lowly paralegals and lit support people [I wouldn’t necessarily call you all lowly] do to educate their attorneys when they insist on extending the reliance on paper?”
RALPH: Well, for one thing, maybe you can point them to my book or point them to the Bray & Gillespie decision. I mean, this is in effect what the attorneys did there. They made a mess with an electronic production by turning it into the equivalent of a paper production, even though that hadn’t been asked for. So you can point out that case that led to the sanctioning of a law firm. No one wants to be sanctioned.
But having said that, there’s nothing in the rules per se that prevents both sides to a litigation matter – both the plaintiff’s and defendant’s attorneys — to agree that, you know what, we’re not going to do e-discovery. We’re just going to pretend like if we exchange papers, we’re doing real discovery. We will pretend that the evidence is only in the filing cabinets, or in what witnesses say they printed out, and that email is really not important. We will just make-believe that the papers we are used to working with contain enough of the truth to decide the case. Now, if both sides agree to this pretend game, then it can happen. <Does that make them pretend lawyers?> This is just the kind of thing that Judge Facciola talks about seeing in his courtroom where attorneys in a software dispute admitted to him, that yep, that’s what they we’re doing. <Is justice even possible by reliance on the make-believe world of paper print-outs alone?>
Does that really meet your ethical duties of due diligence and competence, if the reason you’re avoiding electronic discovery is because you don’t know how to do it? I think there’s some serious ethical questions about this. <Like, has disclosure been made to the client about the decision to avoid e-discovery? Was informed consent given? Or was the decision cleverly shrouded as a strategy to avoid “mutually assured destruction?” Is the inevitability of out-of-control e-discovery expense just a myth to justify avoidance of a complicated area that takes time to learn? Does training and experience bring the ability to defuse the bomb? Can you learn how to control the risks and costs of e-discovery?> These are things that are delicate to talk about, even from one attorney to another, much less from an employee to an employer. <A paralegal would be fired.> So you know you have got to tread carefully. <Forget it.>
MARY: I would also say that things are changing pretty rapidly and they may not have seen the Sedona Cooperation Proclamation that’s been signed by the magistrate judges and certainly if they’re appearing in one of those courts where one of the judges has signed that Proclamation, it would probably be perceived as helpful to have that information.
RALPH: Yes, it would. In fact, my second book contains a review of the key points of the judges’ guidebook that all federal judges are given on e-discovery. You know, judges are, I think, better educated on this than the general bar. So, you’re right, you may be taken to task by the judge. And if one side wants it, then you’re – you know, you can’t pretend like there is only paper or you’ll have happen what happened in Bray & Gillespie.
MARY: Yes. And there’s also the guidance for the chief justices of the state courts as well —
RALPH: That’s right.
MARY: Around e-discovery. And so the bench is getting it. I believe you’re right. I think the judges are getting educated faster than the majority of lawyers.
Closing Call For Volunteers for America
RALPH: Yes. I know we’re in our final closing moments here, are we not, Mary?
MARY: Yes, we are.
RALPH: And so, as a closing thing, I wanted to cover something I haven’t mentioned before but is something I’m excited about. And that is a new scientific research program that’s going on now to try to learn more about how we find the needle in the electronic haystack. The research going on about search.
MARY: Oh, you’re talking about Jason Baron’s project.
RALPH: I am. I’m talking about Jason Baron’s project that I have written about in my blog. The reason I want to bring it up is that all of you paralegals, law students, and lawyers are entitled to participate in this experiment as volunteer reviewers. We need 100 reviewers who are willing to spend 40 hours, at their leisure, some time this coming August and September, reviewing electronic documents and making relevancy determinations in order for this grand experiment to work. <Come on people, volunteer. I promised Jason I’d get him 50.>
So I urge you to consider volunteering your time and really making a difference here and advancing the progress in e-discovery by agreeing to volunteer as a reviewer. You can email Jason Baron directly about that. He’ll be very happy to give you all of the instructions and what you need to know. I think you’ll find it to be a very worthwhile experience. <Great way to pad your resume too.>
MARY: I’m sure Jason will appreciate that – that call there.
Well, I want to thank you, Ralph, for taking the time to talk with us and I’ll turn this presentation over to Debbie. <Whew! It’s over, and no tough Vegas questions.>
DEBBIE: Thank you both for your participation today and for the very lively discussion. We’ve truly enjoyed the discussion. I think the interaction and the questions and the fact finding that you provided today, Ralph, was very, very fun.