I have been interested in the ethical issues surrounding electronic discovery since 2006. At that time I phased out my general trial practice, went full-time e-discovery, joined The Sedona Conference®, and started this e-Discovery Team® blog. As part of my practice I read most of the opinions around the country written on e-discovery. I quickly noticed something I had not seen before in any other field of law. The case law is dominated by sanctions cases involving spoliation of evidence. Not only that, attorneys are often directly implicated in this spoliation and accused of many other types of intentional or negligent misconduct. I began to wonder if I had stepped into a crazy zone of the law where all attorneys acted like sharks.
This suspicion me to think, write, and speak often on the subject of e-discovery ethics, which culminated in my article, Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery, 60 Mercer L. Rev. 983 (Spring 2009). The article led to my participation in a full day academic seminar on the subject at Mercer Law School with noted e-discovery experts, Judge John Facciola, Judge David Baker, Jason R. Baron, William Hamilton, and Professor Monroe Freedman, and Chilton Varner, the transcript for which is published at 60 Mercer L. Rev. 863 (Spring 2009). I came to understand that I had not wandered into a special zone of hell, and that lawyers doing e-discovery were no worse, or no better, than other lawyers. But they were put to special challenges and conditions unique to this new field of law, and the end result was many more errors in judgment than you can find anywhere else. These errors continue as shown by surveys of case law. See eg. Willoughby, Jones, Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010).
Lawyers Behaving Badly
In my 2009 law review article, Lawyers Behaving Badly, I concluded that:
[T]he profession has not suddenly become more sinister than before. Although, some suggest that the dominance of large firms as mega-business enterprises is causing a significant decline in overall ethics. See Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 STAN. L. REV. 1867 (2008). There may be some truth to this, but a general decline in ethical standards does not explain why e-discovery jurisprudence is so rife with malfeasance.
Id. at pg. 985. Instead, I hypothesized four reasons to explain the apparent frequent bad behavior of so many attorneys in the field of electronic discovery:
There are four fundamental forces at work in e-discovery, which when considered together, explain most attorney misconduct:
(1) a general lack of technological sophistication,
(2) over-zealous attorney conduct,
(3) a lack of development of professional duties as an advocate, and
(4) legal incompetence.
These ”Wicked Quadrants” are depicted in the circular diagram below.
I am not going to explore the ins and outs of the Wicked Quadrant in this essay, nor rehash the reasons so many lawyers fall astray in e-discovery. (Interested readers are directed to the article and symposium transcript) Instead, I am going to review and briefly analyze the primary Rules of Professional Conduct that are implicated in e-discovery ethics. These are the rules that we should understand and rely upon to keep us on the straight and narrow, and out of the sanctions penalty box. At the end of Part One I will present a common hypothetical where the ethics of many lawyers involved in e-discovery productions are severely tested . In Part Two I will analyze the hypothetical and show how these rules of Professional Conduct should apply.
ABA’s Model Rules of Professional Conduct
The ethical codes require all lawyers to be competent, and, if faced with a legal task wherein they are not competent, such as e-discovery, to bring in other attorneys who are. Rule 1.1:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Our ethics also requires diligence, a task that is impossible unless you are competent and actually know what to do and when to do it. Rule 1.3:
A lawyer shall act with reasonable diligence and promptness in representing a client.
Fast and efficient action is built into our code. It is emphasized again by Rule 3.2 that requires lawyers to expedite litigation:
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
The duty of confidentiality is also a core value that often comes into play in e-discovery practice. It is embodied in Rule 1.6:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Our fundamental values embodied by our Rules of Professional Conduct also require candor towards the tribunal, the judges. Candor means openness and complete honesty. It is a core value that may never be broken under any circumstances. Should it violate your duty of loyalty to your client, you are required to withdraw from representation, rather than ever be dishonest and closed to the presiding judge. Here are the exact words of this most important of rules, Rule 3.3:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . .
(3) offer evidence that the lawyer knows to be false. . . .”
Our core values as lawyers also require fairness to the opposing party in litigation and fairness to the opposing counsel. This means, among other things, that games of hide-the-ball are forbidden. This does not mean that you should provide evidence harmful to your client that was not requested, or not relevant, or that you are not legally required to produce such as privileged information. But if it was requested, is relevant, and you are legally required to produce it, it is unethical not to do so. If the client refuses to do so, you should withdraw. Rule 3.4 states:
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
This last point is sub-section (d) of 3.4 is specifically directed to discovery requests and will be closely examined in our concluding hypothetical.
Brief Analysis of the Rules
To summarize our review of the ABA Model Rules of Professional Conduct, six rules seems especially important to the field of e-discovery:
- Rule 1.1 – Competence
- Rule 1.3 – Diligence
- Rule 1.6 – Confidentiality
- Rule 3.2 – Expediting Litigation
- Rule 3.3 – Candor Toward the Tribunal
- Rule 3.4 – Fairness to Opposing Party and Counsel
Rules 1.3 and 1.6, competence and confidentiality, are often considered client related duties, whereas the other rules listed above are considered professional duties. I examined the inherent tension between these rules in Lawyers Behaving Badly, which I illustrated with several diagrams.
My article suggests that many lawyers neglect their professional duties, and instead over-inflate client duties instead of crafting a careful balance. I speculate that one reason for this imbalance is that the discharge of client-centric duties tends to receive immediate financial rewards from appreciative, perhaps over-impressed, clients. On the other hand, the reputation gains and societal values from fulfillment of professional duties are more long term and abstract. In the hope that a picture actually may be worth a thousand words, and so spare you unnecessary reading at this time, I provide these diagrams below. I suggest you seek the original article for a full explanation should your curiosity be stimulated.
Attorney competence, Rule 1.1, is such a powerful forces in our legal tradition, that it is an over-simplification to look solely at the problem of ethics in e-discovery in a dualistic manner – client versus profession – as the above diagrams suggest. Another element of complexity must be added to get a better understanding of the problem. Competence should be understood as its own ethical force, and the issue should be triangulated as shown below.
This three-fold structural analysis allows for a deeper understanding of the true dynamics of legal practice. Legal competence serves as an independent upward force, along with professional duties, to counter-balance the pressures and temptations involved with fulfillment of duties to clients. The forces of law and profession work hand-in-hand to offset the demands of some clients, typically implied, to prevail over their adversaries at all costs.
Most of the time the temptations of greed and power do not cause “lawyers to behave badly.” Certainly, lawyers do not make a practice of lying to courts and opposing counsel, even though they could probably get away with it in many instances and maximize their income in the process. There is more to this picture than simple economics. The law, after all, attracts many who are concerned with justice and care about doing the right thing. Most lawyers have strong moral fiber and need little encouragement to do the right thing. They are more than pen-and-quill mercenaries. Integrity, professional pride, and competence temper their financial motivations. Moreover, some enlightened clients recognize and financially reward professional competence and are influenced by professional reputation in the lawyer selection and compensation processes.
The strategy demanded in e-discovery when it is performed competently, is fundamentally different than traditional adversarial strategy for courtroom arguments. It involves cooperation on discovery, buttressed by liberal disclosure by both sides (party requesting information, and party responding to the discovery requests). The need for this new strategy, and the name given therefore of cooperation, was initiated by Richard Braman, the founder of the Sedona Conference. Richard set forth this Sedona initiative in a press conference followed by a written, online Sedona Conference Cooperation Proclamation (2008). This is a brief document of only two and a half pages. It is well summarized by its conclusion, which states:
It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.
Although the proclamation was short, it was elaborated at length in The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.) The article was written by a group of Sedona contributors led by Bill Butterfield of Hausfeld LLP. The executive editors were Richard G. Braman and Kenneth J. Withers, both of The Sedona Conference®. This initial proclamation and article were followed by case law where all of the leading e-discovery judges weighed in with their strong support of the new doctrine, and many more articles. Mancia v. Mayflower Textile Services Co.253 F.R.D. 354 (D.Md. Oct. 15, 2008) (landmark case on cooperation by Judge Paul Grimm that details the basis in the rules and reasonable, ethical practice for a cooperative approach to discovery, especially e-discovery); Losey, R., Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.) (reviews initial case law adopting the Cooperation Proclamation); Gensler, S., The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363 (2009 Supp.) (Professor Gensler provides a scholarly basis and analysis of the new doctrine and its benefits to litigants); Also see DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010) (J. Nolan) (found that the absence of a “spirit of cooperation [and] efficiency” was the controlling factor in determining whether cost shifting was warranted for discovery of nonparty ESI).
The cooperation challenge is still beyond the skill of most attorneys, at least when it comes to making e-discovery related decisions and communications. The competence weakness in turn limits the restraints on unethical conduct. The hardest ethical decisions have to be made where you are not sure what to do. As practitioners of e-discovery improve their technical competence, they realize that the cooperative model must be employed to focus on the issues and to control costs. I have yet to meet an experienced attorney in this field who does not agree with this proposition, one who knows both discovery and trial Practice.
Let us assume for purposes of this hypothetical that the attorneys for one side, the defendant employer in a class action case, have shifted to the new paradigm of Cooperation, and the attorneys for the other side, here the plaintiffs’ counsel, have not. This means plaintiffs’ counsel are still stuck in the old school attitude of attacking all of the other side’s proposals without first considering their merits, without any objective analysis of reasonability.
They do this because they assume that if the other side wants something, then it must be bad for their side. They assume that any proposal is not genuine, that it is instead a gross-exaggeration of the other side’s real position. They assume anti-Solomon attitudes where the baby will be split. For that reason they say 1,000 is their bottom line, whereas in fact the reasonable number, which they well know, is 10 not 1,000. They begin at 1,000 even though they know that 10 is proportional. They do not cooperate. They negotiate. They want to win, and most will do so at all costs without regard to the unnecessary attorney fees thereby incurred.
Unfortunately, in e-discovery most attorneys are still stuck in the non-cooperative win/lose discovery battle. They mistakenly think that it is their job to not only argue the law and application of the law to the given facts, but also to try to change the given facts, to hide and obfuscate facts they think are adverse to their client.
This fundamental difference in attitude towards discovery makes the position of the cooperator, here defense counsel, very difficult. The solution is largely one of education of opposing counsel, or failing that, the court.
An objective reasonable discussion should resolve all issues, especially if there is a fair measure of transparency to the process. This must remain the goal of all cooperative counsel in order to protect their clients from excessive costs and disputes.
Next assume that plaintiffs’ counsel makes a very broad demand for production of email using the old school, win-lose negotiation methods. Assume they make demand for the relevant emails from 50 custodians, naming everyone and their uncle that might possibly have anything to do with the dispute in question. They also purport to define relevancy very broadly by making 50 category demands on a wide variety of subjects, many with only a nebulous connection to the factual issues of the case. They do so knowing that at most 10 custodians are likely to really know anything, but they are not sure exactly who they are, and for that reason they name the larger group of 50. They are also not sure of the real issues of fact in the case yet, largely because they have never talked with opposing counsel. Since they do not have a clear idea of the issues in the case, they define relevancy very broadly with 50 categories of documents.
The new paradigm attorneys, here defense counsel, quickly realize when they attempt real communication with plaintiffs’ counsel on issues of e-discovery, that they are dealing with old school negotiators. It quickly becomes obvious to experienced e-discovery counsel when opposing counsel has little or no personal competence in the area. You cannot hide that, no matter how many experts you may hire to guide you.
Defense counsel quickly realized that no true communications were likely, that they were engaged in a traditional negotiation process with Plaintiff’s counsel. But rather than accept and play the game by say offering 3 custodians and 5 issues, hoping to settle for 5 and 7, defense counsel lays out their case for five custodians and seven issues. They play a new game, a cooperative game of reasoned discussion and informed decisions. Defense counsel makes disclosure and explains why they consider the 5/7 offer to be reasonable. They explain why they think the offer that would be beneficial to all parties.
Next assume that plaintiffs’ counsel are unpersuaded by defense counsel, that they respond with little or no substance, and instead demand 30/30, instead of 50/50, arguing that they have now made major concessions, and thus suggesting or signaling that they will accept 20 custodians and 20 issues. They assume, incorrectly, that defense counsel is like them, that the 5/7 proposal was just the opening offer in a negotiation dance. They did not really care about the reasons stated by defendants for the proposal, and, truth be told, they did not really understand most of the e-discovery technical talk surrounding the issues. They were hardball trial lawyers; tough advocates doing their job by pounding out as much information from the other side as they could. They thought it would help their clients to make the defendant’s case as expensive as possible. They knew e-discovery was a good way to do that, and knew from past experience that this oppose everything tactic was a good way to drive up the settlement value of the case. Discovery, especially e-discovery, was just another tool in the battle against the other side.
Next assume defendants continue to refuse to play the negotiation game, and hearing no real reasons for them to think their original calculation of 5 custodians and 7 issues is wrong, press forwards in their demands for 5/7. They ask for reasons and calm discussion from plaintiffs’ counsel, but instead receive rhetoric and negotiation bluster. Accusatory letters are exchanged, the real purpose of which are not true communications, but mere posturing, mere creation of exhibits for use in motion practice.
The court is then asked to consider cross-motions for relief on a variety of complex e-discovery issues. Both sides claim that they are the true cooperator, and that the opposing party, not them, is to blame for the impasse. What should a judge then do? How do you tell the true cooperator from the mere poser? Both sides claim to be cooperators, and one side did make a major move in custodian and issue count, whereas the other did not. From the negotiation perspective, it looks like plaintiff’s counsel is being more cooperative. Whereas we know that they are not cooperating at all, they are not even communicating or attempting to narrow the issues. How is a savvy judge to sort things out?
The answer lies in probing the merits of the dispute. This requires the judge to also break out of the old negotiation paradigm, to look beyond the facial numbers. Why are five custodians reasonable and proportional, and twenty custodians too much? Why should relevancy be defined by seven issues, and not twenty? It is not a mere numbers game, as plaintiffs’ counsel in this scenario would suggest. The court must do the hard work of examining the merits of the dispute, of determining what is reasonable and proportional for the case, and what is not. The court should refuse to buy into the old paradigm negotiation model, and just split the difference and enter an order allowing 12 custodians and 14 issues. The judge should instead examine the facts in an objective manner, and if 5 custodians and 7 issues are indeed reasonable, should rule accordingly.
This takes time and hard work on the judge’s part, and on part of the attorneys who frame the issues and present the case. They need to provide meat for the bone. They need to make disclosures and present facts to support their positions.
In the hypothetical let us further assume that defense counsel realized their quandary and voluntarily made substantial disclosures. Assume they disclosed their own mental impressions, their work product as to why the five custodians they picked would have the most relevant email. Assume they also provided total counts and other metrics of email for the five custodians they proposed. Moreover, assume the defendant also provided counts for the additional fifteen custodians that plaintiffs’ proposed.
Assume the defendant make even further disclosures to support their argument of reasonability and proportionality. Assume they presented detailed information concerning the costs of the review and production proposed by plaintiffs, as compared to their proposal. Assume it was not puffed or inflated and was supported by facts, which they offered to backup with further testimony if needed.
Assume defendants went even further and began to make sample productions from the top five custodians they picked, and that they did so after a strong confidentiality and clawback order was entered by the court. Assume the emails produced showed that most of the other fifteen custodians that plaintiffs wanted to add at great additional cost were copied on most of the relevant documents.
Assume defense counsel even made some random sample productions from all twenty custodians to show that the top five they had selected had the vast majority of the relevant documents, and were the only source of the few highly relevant documents found. Assume they not only produced the documents they marked relevant, but also made a selective disclosure of documents they marked irrelevant to provide the plaintiffs with an opportunity to review and if need be, to challenge their understanding of relevancy in this case.
Assume that defense counsel was also proposing phased production. That they only insisted their 5/7 approach be for the first phase, and that they did not insist plaintiffs waive their rights to seek additional document productions in follow-up phases. Instead, assume the defendants only sought to clarify that they reserved their rights to object to any future discovery, or not, depending on the circumstances.
With all of these additional facts, these voluntary disclosures, the judge’s work becomes much easier. The judge now has the information, the facts, on which to make a ruling. The defendant has made significant disclosures of their client’s email systems, and even of their email contents. Now the judge is in a position to determine whose position is reasonable, and who is the true cooperator here. This information provides the substance needed for the judge to go beyond the negotiation model of discovery dispute resolution to a true judicial model.
Of course, in the real world all lawyers come before judges with a history. They have a reputation. This can also help a judge to evaluate “who’s on first” and know who is a poser, and who is not. This is especially true where a judge has seen and heard from one or more of the lawyers several times before. That is where the intangible value of an attorney’s reputation comes in.
I am happy to say that in my experience when most judges are faced with this situation, and properly advised of the issues, they will do the hard work and make their own determination of reasonability. They will not simply split the baby and order 12 custodians and 14 issues. But this requires proper education of judges on the issues, which in turn requires competent counsel with a good reputation for truth, honesty and fair dealing. If defense counsel in this scenario are competent, and so is the judge, a just and reasoned result will usually be attained, regardless of any overly-clever negotiation tactics of plaintiffs’ counsel.
END OF PART ONE.
In Part Two I will analyze this hypothetical using the six key Rules of Professional Conduct.