Ask for What You Need and Offer What the Other Side is Entitled To
If the discovery needed is “x”, do not ask for 2x or 3x, hoping the judge will give you at least x. Avoid the temptation to ask for more than is needed to guard against the judge “splitting the baby.” As a mediator before I became a judge, I repeatedly witnessed the dance of offers and counter-offers posed by the parties that led magically to a number somewhere between the opening demand and the opening offer some hours or days later. Representations to a judge are a totally different matter. As a judge, I expected lawyers to truthfully present their position, not posture toward a result. It is dishonest and unethical to ask for 2x when x is just and proper. In electronic discovery, it can have unintended adverse consequences, excessive cost and data dumping being two of them. However, the most costly unintended consequence is losing the trust of the judge and opposing counsel when the truth becomes evident. The same applies to opposing a request. Do not advocate producing x when only 2x will provide full discovery. The truth tends to surface as the case progresses, and judges constantly assess and learn which counsel to trust. Earn and keep the judge’s trust.
In a contested hearing, the judge will expect that there may be two honestly held opposing positions on scope of discovery from which the judge must choose or in the alternative create some compromise. What a state court judge may not have is a good feel for the burden of excessive discovery and proportionality. Judges may need to be educated on staged discovery, sampling, and cost-shifting as methods for keeping costs in line. Proportionality, while a feature of Florida discovery jurisprudence, has not been frequently encountered, and until the concept is experienced more often, the propensity may be to ensure that the requesting party gets everything needed to make their case.
Cooperate, Cooperate, and Cooperate
Judges love it when lawyers are professional and work out issues themselves. It is efficient and allows the court to address the real issues. Two Florida state court judges have signed on to the Sedona Conference® Cooperation Proclamation. So far, Judges Richard Nielsen (Tampa) and Thomas Smith (Orlando) have signed on. Both of those judges sat in their circuit’s commercial divisions. I expect that most judges agree that discovery should not be the primary battleground in a case. Cases ought to be decided on the merits of the case after full and fair discovery by both sides.
A benefit of cooperation and compromise is reaching a known result. Two experienced lawyers with conflicting views and a middle ground that both could live with may end up with a judicial decision that neither likes from the judge. Until state court judges become more familiar with deciding the tough calls in eDiscovery, two experienced lawyers may be able to reach a better alternative than the judge.
Above All Be Totally Honest
The cornerstone of our system of justice is the trust among judicial officers and lawyers that we will be truthful with each other in every respect. Clients also must be able to trust their lawyer explicitly. No case, and certainly no discovery hearing, is worth risking a lawyer or client’s credibility and reputation. It is possible to fool a judge from time to time. However, in most cases, sooner or later, when light washes over the scene and the truth emerges, the price for lawyer and client who subvert electronic discovery can be dear. And rightfully so. See Losey, R., Electronic Discovery at p. 386(West 2010)
The price paid can transcend monetary sanctions in a given case. Judges talk to each other. I never anticipated until I got on the bench how broadly an ethical misstep in court is discussed among the judges, within and beyond a given courthouse. I had judges from other jurisdictions call me to ask about whether he or she could trust a certain lawyer. A lawyer’s reputation is priceless. Part of that reputation is the ability to control the client. Do not let clients hurt themselves by enabling or overlooking client discovery misconduct; client misconduct will adversely reflect on the lawyer in the end.
Honesty also involves the efficient and economical handling of cases. Ardent advocacy does not call for unjustified opposition or excessive discovery. Lawyers who prolong litigation or engage in unnecessary discovery battles in order to keep busy or run up bills are as dishonest as a liar. Judges watch for trends. When I sat on Board Certification review as a member of the Board of Legal Specialization and Education, a lawyer was denied recertification in part because of judicial and lawyer peer review observations of consistently excessive litigation and fees. Judicial and lawyer evaluations determine certification and recertification as well as reputation. However, even if the judge does not catch on, correction for excessive litigation is commonly made by the client. Clients leave. And rightfully so.
Sanctions as a Remedy and a Deterrent: How Will It Play Out in State Court?
Florida’s rule of civil procedure on sanctions, Fla. R. Civ. P. 1.380, is similar to Fed. R. Civ. P. 37. Federal precedent in electronic discovery sanctions should present a formidable influence when the inevitable eDiscovery bumbling, bungling, and deception play out in Florida state courts. Federal court judges, working in a narrower jurisdiction and with a set of rules tailored to electronically stored information, experienced the electronic discovery wave before state court judges. There is a wealth of experience and written decisions from some bright folks on the federal bench on sanctionable conduct, giving then valuable perspective. Plus, federal judges have lifetime appointments, freeing them up to sanction parties and lawyers who misbehave or make mistakes with electronically stored information. However, despite clear written warnings in cases in which federal judges meted out rather stern punishment, lawyers in good firms and their clients are still getting hammered in federal court for electronic discovery abuses and shortfalls. If, as Ralph Losey has said, e-discovery sanctions are reaching epidemic proportions, when will they ever learn in federal court? See: Losey’s articles on ethics.
By contrast, Florida state court judges have seen fewer cases and have not experienced electronic discovery abuses by parties and their lawyers at nearly the level seen in federal court. Judges and lawyers are more communal in state court. Plus, state court judges are elected and do not feel bulletproof when sanctioning lawyers that appear before them. Should such considerations affect decisions to sanction? Absolutely not. However, in the real world judges are human, and it will be interesting to see whether eDiscovery sanctions play out in state court the same way they do in federal court, at least as pertains to sanctions against outside counsel.
Knowing and teaching Florida judges, I trust most Florida state court judges will do the right thing. Florida sanctions cases to date bode well for judicial courage and comprehension of discovery issues, at least when the parties are the subject of sanctions.See, e.g., Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., Case No. 502003-CA-005045XXOCAI (15th Jud. Cir. Mar. 1, 2005) (Judge Elizabeth Maass sanctioned a party for destruction of electronic records in a securities case when litigation was reasonably expected and when the records were required to be kept for two years by federal regulation); Channel Components, Inc. v. Am. II Elecs., Inc., 915 So. 2d 1278, 1285 (Fla. 2d DCA 2005) ($75000 fine imposed by circuit judge for failure to comply with discovery orders was an appropriate coercive civil contempt sanction and not a fine); Menke v. Broward County Sch. Bd., 916 So. 2d 8, 10 (Fla. 4th DCA 2005) (sanctions for spoliation, failure to preserve, and failure to comply with agreed discovery order); Eugene Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 783 So. 2d 1087 (Fla. 4th DCA 2001)(Strasser II) (proper for judge to instruct jury on spoliation of evidence where duty to preserve existed); and Amlan, Inc. v. Detroit Diesel Corp., 651 So. 2d 701, 703 (Fla. 4th DCA 1995) (sanctions in case in which plaintiff’s discovery efforts were thwarted and it took judicially authorized access to defendant’s computer sources to determine discoverable information was easily accessible electronically).
Whether state court judges will just as readily sanction deserving lawyers and law firms for eDiscovery abuse remains to be seen. The recent federal court experience seems to portend that sanctioning lawyers will be necessary, given the number of lawyers and clients who seem to be giving in to temptation to hide, destroy, or just not cooperate in the eDiscovery context. One missing component that hopefully can be compensated for is lack of written precedent. The eDiscovery Bar should encourage state court judges to write discovery sanctions opinions and Lexis®, Westlaw®, and the eDiscovery Bar and blogs should publish them. While persuasive and not controlling, it would be helpful to cite decisions by other judges, state and federal when pursuing sanctionable conduct.
Interestingly, when I teach professionalism courses to Florida lawyers, lawyer participants advocate for tougher judicial sanctions in discovery, preferring that judges reign in errant behavior by opposing counsel. To lawyers, it is a problem when judges are reluctant to get tough. If you believe that, let judges know that when you write or participate in education and information exchange. My personal view is that a judge needs to set the tone of professionalism early on and consistently make the tough calls to keep the case moving and the lawyers and parties behaving. Early intervention (the first transgression) is an opportunity to set the tone. Fla. R. Civ. P. 1.380 provides the vehicle for sanctions. However, sanctions are not a panacea, as federal court experience seems to tell us. Read on.
Sanctions Are Not a Panacea
Those who care about the future efficacy of state judicial systems when the tidal wave of eDiscovery hits should take a hard look at the federal system to see whether sanctions are the answer to increasingly excessive electronic discovery costs. Will state court judges be able to reign in the spiraling costs of discovery? My personal view is that lawyers and judges should be pragmatic about the long-term prospects for our judicial system and not let thetail wag the dog. Solutions for the future of discovery of ESI involve reining in cost for reasons other than avoiding sanctions. Florida common law supports the concept of discovery proportionality. See, e.g., Chrysler Corp. v. Miller, 450 So. 2d 330 (Fla. 4th DCA 1984). However, proportionality is not the only policy needed to stem the tide. There needs to be a shift by lawyers from getting everything that “may” be needed to economically searching for what is really required. Judges must stop enabling the insecure, lazy, big-net approach in favor of a planned, forward-thinking, efficient and economical approach.
There are many benefits to lawyers carefully studying and planning for refined discovery and investigation beyond the obvious attractiveness to clients. The approach sends a professional message to the opponent and the judge, making litigation less stressful and the lawyer more persuasive and effective on behalf of the client. Discovery requests beyond that needed for the case can actually help the opposing lawyer’s case by uncovering information beneficial to the other side’s theory of the case or may create claims or defenses that were not apparent before. A broad request may also lead to an equally broad request from the other side, which will be immunized from opposition because the request mirrors yours. Casting a broader net than is necessary or allowing excessive discovery from the opponent increases cost of privilege review and needlessly exposes client trade secrets or other confidential information to exposure.
The most common ill-effects of poorly planned and excessive discovery are two that I that witnessed over and over in my experience as a lawyer and a judge. It is harder to find the core facts with unnecessary surrounding clutter and easier to be distracted from a clean, crisp presentation of the case. Lawyers who do excessive discovery end up missing key facts or camouflaging them in trial or hearings with excessive and distracting information. “TMI” is bad. Giving a jury or other fact-finder more information than they need or can handle leads inevitably to either boredom or confusion and bad results. With so many advantages to narrowly-drawn discovery requests, it is hard to imagine why lawyers continue to ask for the moon. But they do.
Death-Knell for the Jury Trial?
Until all state and federal courts curb the spiraling, excessive emphasis on discovery, jury trials will become an even more endangered with extinction as a means of dispute resolution, which is not a good thing. Florida lawyers are troubled by the dearth of jury trials, as evidenced by the appointment of a special committee to study the problem. See Dearth of jury trials worries committee: Does the public view that in a negative way? Florida Bar News at p. 1(Oct. 15, 2010). Do they really need a committee to study this? We know the answer. We have met the enemy and the enemy is us. Clients settle cases because it is too damn expensive to go to trial. When the costs of discovery are excessive, the solution is to pare down discovery to what is needed. That’s the lawyer’s job, isn’t it? This prospect applies in spades when dealing with electronically stored information.
Ralph Losey and others have written about keeping the discovery system fair, efficient, and honest many times before. However, will the golden goose be dead before lawyers get the picture? Without answering that question, which could be depressing, just consider what happens if we do not practice efficiently and ethically when the electronic discovery tsunami collides with an already overburdened court system in Florida. Justice suffers, true enough. Anyone who settles for the wrong reasons is denied justice. Clients suffer by spending resources on something other than advancing their business or lives. If jury trials become an increasingly less viable option, then ADR becomes less effective. Arbitration will become as burdensome and expensive as jury trials. Mediation in jury trial cases works only when there is a real alternative of a jury trial. Effectively remove the option of going to trial before a jury of peers, then settlement may occur for the wrong reason and justice is denied. Remove jury trials and the public (as jurors) become disengaged from the system of justice.
I learned from some visiting Korean judges why our jury system is so important: until recently, there were no jury trials in Korea. Their citizens have an “us and them” view of the court system rather than participatory ownership. If the citizenry is not engaged in the system, it affects trust, respect for judges and lawyers, willingness to fund the system, etc. In my view, we do not want to go there.
Extortion by Cost of Discovery
Injustice can also occur by so-called discovery cost extortion.” Consider the party faced with potential discovery requests in which cost of production are outrageously expensive. Judge Shira Scheindlin, in an educational podcast framed the question as follows:
What do you do when you are the defendant and you’re not there voluntary and you’re asked to produce information. Are you saying that rather than spending the money you ought to throw in the towel and just settle the case? Because I’m worried, and many people are worried, about the high cost of e-discovery allowing extortion to occur in a settlement.
S. Sheindlin and R. Losey, Electronic Discovery and Law School Curriculums, ESIBytes.
Judge Scheindlin’s question is valid, but not just for defendants. Achieving a settlement or concession in lieu of compliance with the burden of discovery is Bizarro-justice. Either party may potentially extort the other by the threat of expensive or intrusive electronic discovery. The issue is particularly acute if the judge is not attuned enough to electronic discovery to correctly assess the distinction between valid discovery needed for a party’s case versus an outright fishing expedition, or worse, a preemptive electronic discovery strike intended to coerce an undeserved outcome in the case. To succeed, counsel must have a good handle on electronic discovery from both a technical and legal perspective in order to educate the judge. Florida state court judges must master electronic discovery through judicial education and personal research in order to do justice on each side of the equation, which is a tremendous challenge.
You may think that I raised more problems than answers. However, I remain optimistic that Florida (and other) state court judges will address and conquer these problems. However, it will take education, commitment, courage, and decisiveness to do so. Keep that in mind if you have any involvement in nominating, electing, or recommending new or replacement judges in your jurisdiction. When I sat on my circuit’s Judicial Nominating Commission some twenty-five years ago, I favored judicial candidates with real life, practical experience in their background. Years later as a judge and educator, when I taught and worked alongside judges from varied backgrounds, public and private, I became less impressed about a judge’s pre-bench background and more focused on their intelligence, courage, and the quality of their character. Quality judges rise to the occasion, regardless of experience and background, but only if they are given an option to consider the right path as one of the choices.
When you get a chance like Ralph Losey and Bill Hamilton to teach judges in formal courses, by all means help out. But your real job and impact will be teaching judges every time you appear before them. By being prepared, decisive, efficient, and professional and by showing judges the right path in your case, every lawyer and every expert witness can build on the effectiveness of the judiciary, one judge and one hearing at a time. After all, you are the solution to the problems we face.