“People make mistakes.” This simple three word sentence is how Chief Justice John Roberts begins his opinion in Conkright v. Frommert, No. 08-810 (Apr. 21, 2010). He goes on to add: “Even administrators of ERISA plans.” Then he explains how complicated those plans can be. As a former ERISA litigator, I know he’s right, as I have read far too many ERISA plans myself. But let me tell you, as an attorney who left ERISA to focus solely on e-Discovery in 2006, it’s nothing compared to ESI plans.
As complicated as the facts and law are in employee benefits disputes, the world of electronic discovery with its ever-changing technologies is far more complicated. So if the Supreme Court is inclined to give ERISA administrators a break, which they did in Conkright, then surely they will do the same in e-discovery too, if and when such a case ever darkens their door. The Justices of the Supreme Court may not have a good grasp of today’s technology, as I examined in The-times-they-are-a-changin’ is a feeble excuse for disregard of duty, but they do have a good grasp on human nature and the law. They know the proper standard for judicial review is reasonability, not perfection.
The lower courts should also recognize this simple truth, that people make mistakes, and so too do the computer systems they design and run. The law should never demand perfection. Judges need to better understand that this applies to the world of ESI spoliation and sanctions too. The law should only demand reasonable, good faith efforts to preserve, collect, review and produce. If these efforts are made, but mistakes still happen, for instance an email is not preserved, or a privileged document is produced when it should have been withheld, there should be no sanctions. The judges should recognize the limits of our humanity, and the enormous complexity of our task, as Chief Justice Roberts did in Conkright. They should temper their response accordingly.
Judge Scheindlin gets it. In her most recent landmark case, The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), which she amended twice after catching mistakes in her opinion, Judge Scheindlin said:
In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection.
Id. pg. 1. She then goes on to qualify that although perfection is not required, reasonable efforts are required, and the standards for acceptable practice have evolved quite a bit since she wrote Zubulake. See Eg. Raising the Bar – Judge Scheindlin Defines Gross Negligence in Spoliation. Also see: BREAKING NEWS: Judge Scheindlin Amends Pension Committee Again.
But sadly, not all judges get it. If any mistakes are pointed out to them, they rush to sanctions, sometimes even including waiver of the attorney-client privilege. In my opinion, that is what happened to the Venable law firm in Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). They missed several attorney-client emails, and accidentally produced them, instead of withholding them. According to the court’s own findings of fact, the mistake was made primarily because of an error of some kind in the indexing of one of thirteen Concordance databases the firm was using to run this large project.
The Magistrate Judge who issued the ruling seemed to be motivated more by the contents of what she read in the emails, than by the law. She departed from the law’s demand of reasonability, not perfection. She glossed over the software failure (we all know that no software is perfect and all computers can and will fail), and instead focused on the law firm’s failure “to perform critical quality control sampling to determine whether their production was appropriate and neither over-inclusive nor under-inclusive, even though Venable was counsel in the Victor Stanley case.” For the full story on this case see: The Good, the Bad, and the Ugly: “Mt. Hawley Ins. Co. v. Felman Production, Inc.”
What does this mean? People make mistakes. In e-discovery, particularly in complex cases, as Feldman surely was, mistakes happen all of the time. So, unless you have a wise and forgiving technophobe like our Chief Justice hearing your case, or a technologically sophisticated jurist like Judge Scheindlin, you may be required to double-check your work with sampling before it goes out the door. This may be what is now necessary to protect yourself against the inevitable mistakes. If you don’t, and a mistake causes harm (or someone argues it does), you may be found to have acted unreasonably. You know that movants for sanctions will cite Felman and others to argue that it is negligent not “to perform critical quality control sampling.”
People may make mistakes, that’s ok. But if the person is a lawyer or technician in an e-discovery project, they may now be expected to do some sampling to try to catch their mistakes. I am not saying this is right or wrong, but it does seem to be a trend.
So must we all now practice defensively and sample everything? Not only that, must we carefully document our sampling and be prepared to share it someday with a skeptical court? Shall I start working on a new online course for law schools called Sampling 101?
Will our clients agree to pay for this added step in an already pricey process? Do they have any choice if they want to improve their odds of protecting their privileged communications?
What do you think? Should sampling now be a requirement for reasonability? Is it already a best practice? If so, for all cases or just a few? If just a few, which ones? Moreover, what does sampling cost? What does it entail? How many lawyers really know how to sample anyway? How many know the significance of the number 1537? Do you know what it means to have an estimate of +/- 5% with a confidence interval of 95%? Do you care? If so, see eg. the EDRM Search Guide Appendix on Sampling. Are all lawyers expected to know this stuff? Or just the ones that happened to be in Victor Stanley case?
ERISA lawyers have it easy. If you want a real challenge, become an e-discovery lawyer.