14 Responses to An Open Letter to the Judiciary – Can We Talk? (Part One)

  1. Couch Potato says:

    Let’s hope this is the start of a dialogue. There are many issues similar to the issue of confidential information in the discovery process which would benefit from streamlining. If this one can be addressed, perhaps others can as well.

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  2. Ralph, this is a great letter. Thank you for sharing it with your audience. Hopefully some of the issues raised by the author will start to gather momentum through subsequent discussions. I’m looking forward to part II.

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  3. WTKJD says:

    This issue represents a tempest in a tea pot.

    For 40 years my grandmother was secretary to the Dean of Georgetown Law School. She taught me to type, but more importantly, she taught me how to structure a business communication and how to file. Confidential information either had a ‘Confidential’ designation in the subject line of the letter’s salutation or had ‘Confidential’ typed as a footer, and was then filed appropriately.

    When computer companys developed hardware and software for business, the promise was to replace secretarial and clerical workers plus increase everyone’s productivity. They developed tools that mimiced everyday life. Hence we have ‘edocs’ and the like. One of the things they provide us is metadata fields for office documents and fielded flags for messaging communications (emails, etc.) Any email can be flagged confidential and any document can be meta tagged in a similar fashion.

    If a litigant fails to make use of the tools, or fails to train and manage their employees to consistently use the tools they 1) either bear the cost of their failure as a confidentiality review or 2) run the risk of waiver. This is no different now than it was in 1960 when my grandmother was typing her letters.
    Many lawyers fail to understand these simple concepts as soon as you put ‘e’ in front of anything. As long as prominent lawyers continue to wear computer illiteracy as a badge of honor, we will continue to see these well meaning but ignorant discussions. The only thng worse is when a ltitgant does a good job here only to have the flags lost because lawyers refuse to properly handle the metadata.

    Every person and business today bears some risk of involvement in litigation. Every person or business shares the responsibility to manage their information assets properly. The tools are routinely provided. If they fail to act responsibly, why should they be given a ‘pass?’

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  4. Ralph Losey says:

    Dear WTKJD,

    I suspect your grandmother was a wonderful person and the Dean was lucky to have her do all of his typing and filing for him. I recall that only 30 years ago I had a secretary who typed and filed paper letters for me too. On a busy day we would send out two, maybe three letters, and she would file for me the four or five others letters I would receive in a day. It was customary to respond to a letter in a week, and the mail took another two to four days. We had time to think, to do draft after draft.

    But those days are long gone. Now we all get 100 emails a day and some people expect a reply within hours, not days. The overall volume of our written communications has increased thirty-fold, if not much, much more. To make matters worse, we have also become our own typists and our own record keepers. None of us have a wonderful person like your grandmother anymore to carefully type and legend each and every email and attachment. Not only that, the country is much, much more litigious than in your grandmother’s day.

    In the real world of today’s fast paced technology this is a serious problem. We are now all part of global commerce where U.S. companies no longer dominate like they did in your grandmother’s day, or even your mother’s. We must be sensitive to runaway litigation costs. We cannot continue to handicap U.S. companies by subjecting them to a higher litigation tax than anywhere else in the world, by far. This is especially important during this drag-on recession we are still in.

    The relief requested here is reasonable. It does not give companies a “pass,” as you suggest, it gives them a fair chance to have disputes decided on the merits. That is a concept both your grandmother and her boss would approve. Let’s be realistic, in today’s world it is easy to make an over-broad request. All too often these requests are approved by courts and a company is forced to spend millions just to reply without waiving their legitimate rights to confidentiality. It is naive not to realize that many of these requests have ulterior motives, either to inflate settlement value, go on a fishing expedition, or both.

    Let’s get back to focused, reasonable discovery. Let’s not just talk about Rule 1, let’s see it enforced. Let’s be much more liberal in granting umbrella orders. Let’s stop kidding ourselves about the so called “protection” of blanket orders.

    Yours Truly,

    Ralph Losey

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  5. Ralph Artigliere says:

    Excellent post. Await Part II.

    I will likely be using this issue for developing case studies in judicial education for Florida lawyers.

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  6. Tinzing Artmann says:

    Ralph,
    Thank you again for posting such a great masterpiece.I got the chills when I read this posting. This is so true. Knowing the cost associated with preservation, collection, culling, reviewing and production, there has to be a supreme rule that dictates the discovery as a private channel. I really like the paragraph that begins with ” what is the big deal with confidentiality designations? The answer is that companies regard their internal thinking about a subject, their ideas, their proposals, their draft plans, etc. as business proprietary and not something to be shared outside of the company. Such documents may not rise to the technical level of a trade secret, but they certainly represent the inner workings of a company trying to do business in a competitive environment – a company that wishes to and instructs its employees to conduct those efforts behind the company’s doors – legitimately so.” Providing a blanket confidentiality provision to discovery material may even expediate the whole discovery process. Further, protective order should have clauses in them that dictates return of confidential documents and provision of sanctions if violation of such term occurs. How painful it is to apply redaction on each and every single piece of document if no such protection is granted- only a Litigation paralegal or litigation support team will know!!!

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  7. Mike Rossander says:

    WTKJD’s analysis above posits that because every document COULD be tagged with a “confidential” metatag, that every document WILL be so tagged by users and that if they are not, it is by definition the user’s fault. This flies in the face of reality and human nature. If the writer’s grandmother was truly as diligent as described, then she was an exceptional and very rare person.

    What the writer fails to note is that while his/her grandmother’s ‘Confidential’ designations would have been a useful starting point for a review, those designations would be neither necessary nor sufficient. Despite her diligence, both untagged confidential documents and overclassified documents undoubtedly existed. No responsible lawyer would have depended on such a tag as the sole authority even in an all-paper environment. The problem now is worse.

    The normal employee is overwhelmed with responsibilities and pressured by time. Applying confidentiality flags to documents is and must be a manual process. (As the author notes above, there are far too many topics and ways of discussing them for automated confidentiality tagging to be feasible anytime in the near term.) Applying confidentiality flags to documents intended for purely internal consumption is arguably an irresponsible use of scarce resources. If the document is already protected from disclosure or leakage by the business’ IT defenses and practices, the tag is unnecessary. (The theoretical possibility of future litigation should NEVER be the driver of business process. It is, for example, specifically excluded as a required basis for a company’s records retention standards.)

    The writer further assumes that the tag will be usable for confidentiality filtering in a litigation context. The truth is that in any organization with a structured classification system, significant errors occur. Again, users tag the documents by hand. Even among the most diligent, some will be missed. More commonly, users will over-classify their documents, alleging confidentiality over communications which are not really sensitive. This can occur through a misplaced sense of self-importance, a misunderstanding of the situation or a sincere desire to be “better safe than sorry”. The few companies which do use confidential flags, in my experience use them only because they are set as a default to a document’s template. This does not meet the current “good faith” standard which the anonymous author described so well.

    The reality is that unless you are working with the Department of Defense (and often even then), confidentiality coding is and always will be a low priority for users. Trying to assume differently and blaming the clients when their (perfectly legal) business processes don’t match YOUR priorities is irresponsible.

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  8. […] please share this Open Letter to the Judiciary with state and federal judges that you may know. Here is the link to Part I of the Open Letter, which should, of course, be read […]

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  9. Can we talk, catchy title and good read!

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  10. […] PART I: “An Open Letter to the Judiciary – Can We Talk? (Part One)” […]

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  11. […] an enormous problem in litigation. See Anonymous, An Open Letter to the Judiciary – Can We Talk? Parts One and […]

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  12. […] An Open Letter to the Judiciary: Can We Talk? (part one) Read article » […]

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