Kurt Leafstrand on his Clearwell Systems blog e-Discovery 2.0 runs a feature from time to time called Five e-Discovery Questions with various e-discovery types, beginning with Craig Ball. Kurt uses a format where he writes out five questions, emails them to you, and then asks you to email answers back. Personally, I prefer live interviews with some interactivity and spontaneity. Still, if Craig could do it. After all, it was only five questions, five easy pieces. That reminded me of the great movie, Five Easy Pieces, where Jack Nickolson’s character Bobby Dupea found out you can’t always get toast with your breakfast. Here’s the famous “toast” scene from the movie, which is well worth the view.
With that in mind, I decided to at least read the questions and see if this was something I was willing to do. The first thing I notice is that these are news-conference type questions. You know the ones where the reporter cleverly asks three questions all mixed up as one question, and then has the nerve to ask a followup. For instance, the first question Kurt asks is clearly three questions. He does not even try to hide it like a professional reporter. Apparently this is not his day job. Still, I kept reading and the alleged fifth question (really the ninth) was amusing to me, so I agreed to do it. Besides, it sounded like a pretty easy way to write my own blog on this lazy summer weekend. But be warned, this may well end up being a fast road to nowhere; we’ll see.
Here are the “five” questions I was asked, in writing no less and without toast. I tried to keep the responses fresh by starting with a tape recorder and dictating my off-the-cuff, linked answers.
Kurt Leafstrand’s First Question: We have always loved the name of your Blog –”e-Discovery Team.” It succinctly sums up your overall approach and philosophy of e-discovery. What’s the current state of the “e-discovery team” in most organizations? How has it progressed over the last few years? Where does it need to go to next?
Losey’s Answer: You are correct that the name of my blog – “e-Discovery Team” does sum up my overall approach. I believe that e-discovery should be handled differently from all other areas of the law. It requires a team approach where lawyers and IT work closely together. That is why I have also devoted my web Floridalawfirm.com to this proposition. It also requires a different kind of lawyer, one who is comfortable with technology.
You first first question asks about the current state of e-discovery teams in “most organizations.” I have seen surveys indicating that most of the so called “serial litigant” companies, that is, the large corporations who because of their business tend to be sued a lot, such as the pharmaceuticals, large telephone companies and the like, have set up internal e-discovery teams. For companies that are not serial litigants and thus are not force to address e-discovery right away, the percent decreases dramatically. I would guess less than half. For law firms, my guess is that about ten percent have set up e-discovery type departments or teams, or at least say they have.
These survey based statistics can be misleading. When I talk to members of large corporate e-discovery teams in an informal off-the-record manner at conferences and such, most confess that they are struggling. Typically, I think it is because they are asked to do too much with too little. Companies need to adequately fund an e-discovery team in order for the team to succeed.
As for the law firms, most of the e-discovery teams you see touted on websites are just marketing. My guess is that there are only about 25-50 law firms in America with bonafide, functioning e-discovery teams, and many of the top AmLaw 100 firms are stumbling along without one. That is why you keep seeing them making horrible e-discovery bloopers. Their clients’ reaction to these mistakes is the truly amazing thing. Unlike Jack Nicholson’s character in the great ending to Five Easy Pieces, the clients just put up with it all and never seem to leave. They may be on a fast road to nowhere, but don’t seem to care.
Moving on to your second first question on how the e-discovery team approach has progressed over the last years, I would say that the progress has been mixed. I have given umpteen presentations to corporate counsel and others to explain the benefits of e-discovery teams over the past three years. The argument itself is easy to make and compelling, so long as you add enough graphics to keep everyone awake. I have not run into anyone yet who doesn’t agree that it’s a good idea. So I think we’ve come a long way in selling the concept. But the implementation is another question. There we still have a long way to go.
Again, the answer is adequate funding and real training, which I address in a minute. You can’t simply add this job description and demands on people’s time and expect it to work. Most corporate counsel and their IT and business partners on corporate e-Discovery Team already have more than enough to do. You can’t expect them to do this new job, and do it right, and keep doing all of their old jobs too. You have to take stuff off their plate to make room for them to perform these new functions. The best solution is to hire someone whose sole job it is to run an e-Discovery team. Then you also have to give the team money for software and outside vendors and consultants.
Although these comments have been directed to the internal corporate e-discovery team, the same comments apply to law firms forming their own e-Discovery Team service group. They need to combine whatever lawyers they have that know about e-discovery with whatever tech support and paralegals they have that know about e-discovery. There is a tendency for the two to operate in separate fiefdoms, which is contrary to the team approach. Such integration is not easy, however, especially since there is an extreme shortage of knowledgeable e-discovery lawyers. It seems like there are two or three knowledgeable e-discovery techs for every attorney. Either that or they are just better at fooling me than lawyers are.
As to your third first question, where this needs to go next, companies and law firms need to better fund and train their internal e-discovery teams so that they can be fully operational and realize their cost-saving and quality control potentials. It takes some money to save a lot more. Obviously, this is hard sell in the current economy, so I expect there will be several more years of struggle before this happens. But when it does and these skilled teams becomes a priority for companies, then they can affect significant cost savings in e-discovery. As a bonus, fewer mistakes will be made and the whole process will be far less painful than it is now.
From the law firm perspective, e-Discovery Teams can affect significant profits and competitive advantage by the skilled rendition of e-discovery services. The existence of an internal corporate e-Discovery Team does not make outside counsel obsolete, it just changes the role and requires higher skills and greater collaboration. Further, many companies, especially the medium size and small ones, will never form their own teams and so law firms and vendors will continue to have to do everything for them.
But there is more to this than just throwing money at the problem and funding the teams. We also need a lot more in the way of knowledge input. There are several dozen people across the country that really know this field, but that is not nearly enough to address the hundreds, if not thousands of companies and law firms that need this knowledge. Short of cloning, the best solution is to retain an outside “coach” for teams; one that assists many teams at once. The coach is not a full time team member, but rather an outside expert that helps organize the team, train the players, design the plays, and after that, helps encourage the players to win the game on their own. Although these days I spend a lot more time in litigation than I do in e-discovery teamwork, my favorite role is that of e-Discovery Team coach.
“Empty Head, Pure Heart” Defense to Spoliation
Kurt Leafstrand’s Second Question: Should there be an adverse inference distinction between cases where e-discovery may have been conducted in a sloppy, incomplete fashion, but without malice, versus one in which the party actively sought to hide or suppress documents in the case?
Losey’s Answer: There should be and there is. The law already distinguishes between negligent spoliation, grossly negligent spoliation, and intentional spoliation. Also, other circumstances may enter into a judge’s determination of whether there has been bad faith exercised in connection with the destruction of evidence. If a judge is convinced by the evidence that it is simply an empty head, but pure heart destruction of evidence, they are going to be easier on the attorney and the parties. As Bobby Dupea said: “If you wouldn’t open your mouth, everything would be just fine.”
Still, the pure heart empty head defense will only take you so far. It might be enough to stop an adverse inference instruction, but not enough to stop lesser sanctions. For instance, opposing counsel may still be able to talk about what happened to the jury, which could be just as effective as an actual instruction. Further, the empty headed attorney with the pure heart may also end up with an empty wallet. The attorneys may be personally required to pay fees and expenses, as we have seen in numerous cases recently. Further, if its not the attorney’s fault at all, but rather the party’s empty head and pure heart, you can rest assured that most judges will not hesitate to make the party’s pocket empty too.
Pure heart or not, people are going to have to pay for these mistakes because the loss and destruction of evidence is, and long has been, a serious issue in the common law. If you have any doubt about that, take a look at my recent blog on Armory v. Delamarie, the case decided in 1722 that started the spoliation doctrine. The defendant in that case, a goldsmith named Delamarie, tried the empty head pure heart excuse for losing the precious stones that were at issue on this case. The judge didn’t buy the argument. He assumed that the goldsmith had intentionally hidden the evidence so that the jury could not see it and the goldsmith would not have to give the gems back.
That is always a danger with the pure heart defense. The judge or jury may not believe you. You may claim that you just didn’t know what you were doing and this is a common thing for “bad guys” to do, but that doesn’t mean the judge and jury are going to believe you. It’s all a matter of weighing the evidence. I think judges are going to look very closely at these defenses in the future and that they will be skeptical of lawyers who come up with “Opps – my bad! Sure didn’t mean to” defense. The lawyer and parties may well be telling the truth, but clever opposing counsel may be able to make it look like they did it on purpose. So the best thing to do is get your act together and save the evidence. This does not mean perfection – mistakes will always happen – but it does mean the exertion of reasonable efforts.
Kurt Leafstrand’s Third Question: Are judges equipped with enough information to be able to make this distinction? (between intentional and accidental destruction)
Losey’s Answer: There’s an old expression that all attorneys involved in litigation know very well: “The devil is in the details.” This is true with most issues in litigation. The facts of a particular case shape the law. This is how the common law system of justice is supposed to work. In the United States the judges do not go out and get these facts like they do in civil law countries. Here fact gathering is up to the attorneys. Therefore, the judges will be equipped with enough information to make this distinction if the attorney’s involved do a good job in bringing the facts to the judge.
How do attorneys get this information? Through discovery of course. That’s where we get into the can of worms of “discovery about discovery.” Whenever you get into a motion for sanctions situation you have opened up that can. Before you know it, you are taking depositions and having evidentiary hearings about what you did to collect documents, what you did to preserve documents, even who said what at the Rule 26 “meet and greet” conference between attorneys, as we saw recently in the Bray and Gillespie case.
This kind of discovery about discovery and evidentiary hearings on who did what in discovery can become tremendously expensive. I don’t point this out to suggest that we not get to the truth and that we not protect the system from people who would try to hide their wrong doings by destroying the evidence. I point this out to stress the importance of doing e-discovery right, which includes preserving the evidence correctly. Yes, it does take a little time, effort, and thus money to preserve evidence upon notice of a dispute. But this is money well spent. This kind of money will protect the company from later being involved in these kinds of expensive sanctions hearings, discovery about discovery, and the like. Again, this all comes back to the e-discovery team approach of preventive medicine. Companies and law firms need to take the time to set up the systems to prevent the destruction of evidence, both accidental or intentional. Either way, pure heart or not, it is going to open up an expensive can of worms and therefore it is worth the money to nip it on the bud.
Kurt Leafstrand’s Fourth Question: What is the biggest gap today between e-discovery vendor offerings and what legal end-users need.
Losey’s Answer: It is the gap between the ears of the end-users and vendors. I say this with respect because these end-users and vendors are often extremely bright people, but most of the attorneys have not had the opportunity to receive training in electronic discovery. For one thing, it was never offered in law school, until recently. Even now less than 5% of the law schools in the country offer any classes in e-discovery. Most of the end-users learn what they know by on the job experience. This is a process of trial and error that rarely leads to best practices. End-users need better education. The CLEs are inadequate. The education programs in most law firms are also inadequate, if they exist at all. Better educated and knowledgeable end-users will make for better consumers of vendor offerings.
Vendors share some responsibility in this as well. They need to take the time to really educate their users about their products, rather than just dazzle, scare, and promise. Vendors should never use words or phrases that are not commonly employed by the end-users, or, if they must, then they should carefully explain it to them in an apologetic manner. A vendor that goes around talking geek-talk over the heads of end-users is not doing anybody a favor, including themselves.
Kurt Leafstrand’s Fifth Question: How much time does it really take you to crank out one of your blog posts? Does the hot Florida sun keep you indoors typing away at your computer? Or do you have some sort of waterproof lap top that allows you to write while floating in your screened in pool?
Losey’s Answer: There you go again, three questions in one. Not to mention you are now getting kind of personal here, aren’t you, especially for an email interview with no toast? As Bobby Dupea says in Five Easy Pieces (imagine Jack Nicholson’s voice now):
I don’t know if you’d be particularly interested in hearing anything about me. My life, I mean… Most of it doesn’t add up to much that I could relate as a way of life that you’d approve of… I’d like to be able to tell you why, but I don’t really… I mean, I move around a lot because things tend to get bad when I stay. And I’m looking… for auspicious beginnings, I guess…
My real answer is not particularly interesting either, but for the brave reader still hanging on, I’ll give you what passes for a straight answer. It takes me about 8 to 20 hours per weekend to grind out a blog post, which typically runs from 3,000 to 6,000 words. This week’s blog, with the interview and all, will only take about 6 hours, thank you very much. Of course, it’s not really that good either, but then there is always this famous exchange in Five Easy Pieces to make up for it:
Bobby: What else do you do?
Catherine: Well, there’s fishing, boating, and concerts on the mainland. [Laughs] I feel funny telling you this. This is really your home. You probably know better than I what there is to do.
Catherine: Well, it must be very boring for you here.
Bobby: That’s right.
Catherine: I find that very hard to comprehend. I don’t think I’ve ever been bored. Excuse me.
To help ease the boredom for my readers I also have guest bloggers contribute to the e-Discovery Team blog from time to time. In which case it only takes me a couple of hours to help them along with editing, hyper-linking, design, photographs, proofing, and final posting to the blog.
Obviously all of this is a labor of love on my party. I enjoy trying to make legal education interesting and wherever possible, maybe even somewhat entertaining. I believe that legal writing should be integrated with both popular and classical culture, but preferably not in the same article. That is why I try each week to weave cultural elements into each blog and to include visual images. This week it is the good Mr. Nicholson and Five Easy Pieces and last week it was Charles Dickens. Who knows what next week may bring? It often depends on what new cases are published or what other events in the world of e-discovery come to my attention. This is a fast moving field that is still in its formative stages and I enjoy being a part of it. Like Bobby says, I’m looking… for auspicious beginnings.
Legal writing should not be cold, dull, and isolated. The law is wrapped up in society; it is the bones which holds it all together. So why shouldn’t writing about the law include cultural references? I think that words and pictures should go together; that the ideal approach to education is multimedia. Most legal writing is too sterile and aloof for me. It is often clever, but that is not enough. It should also be interesting. To put it another way, boredom is the enemy of education and imagination and creativity are its friends. I think I just made that up. Anyway, it sounds like a good motto for a training program that I am working on now.
As to your question about my floating in a pool: well, you made a pretty good guess, although I do not have a waterproof laptop. Is there such a thing? Typically I have every tech toy in the world, so I doubt there is or I would already have purchased one. Right now I’m an avid fan of the Macbook Air all flash drive version. I can take it with me anywhere, and usually do. I have written my blog in all kinds of places, but usually I just write at home. To quote one last time from the oh-so-mortal Bobby Dupea:
Bobby: What are you doing screwing around with all this crap?
Catherine: I do not find your language very charming.
Bobby: It isn’t. It’s direct.
Catherine: I’d like you to leave so that I can take a bath. Is that direct?