This is part three of my report on Georgetown’s recent Advanced eDiscovery Institute CLE . Part one reported on the primary buzz, predictive coding: Most Advanced Students of e-Discovery Want a New CAR for Christmas. Part two reported on talk about the new Rules and Judge Scheindlin’s attack on same, Georgetown Part Two: New Rules Are Coming! This last part will point out a few more topics preoccupying the country’s best e-discovery practitioners.
A lot of folks were talking about logs at Georgetown. No, not yuletide logs as shown in the video below. They were talking about privilege logs and what a big waste of time they are. They think something needs to be done about it. They cost thousands of dollars to make and yet do not serve the purpose for which they were designed, to give fair notice to the requesting party of relevant documents withheld due to privileges. Not interested? Well, watch this yuletide log video instead. Then read on because I promise some privilege logs jokes to make it more palatable.
Privilege logs were discussed at length during the panel: What’s Next in eDiscovery?: Looking Beyond the Court Decisions. The panel moderator was Carol L. Eoannou. The panelists were: Hon. Nan R. Nolan, Kevin F. Brady, Robert D. Owen, Steven D. Susman, and Kenneth J. Withers.
It is unclear from listening to the panelists who hates privilege logs the most, the lawyers who have to make them, and respond to them, or the judges who have to read portions of them from time to time to resolve disputes. Just saying in camera review is enough to make Judge John Facciola go off into a rant. I would not want to bring a request like that to him. And before I did I would be damn sure every document on the log was clearly privileged. Judge Facciola thinks lawyers are crazy over broad, negligent even, in way over-designating emails as privileged communications. He would like to change the rules so a judge can personally sanction attorneys for every designation that he finds to be wrong. Yikes. No, you do not want to make him angry with whole cloth arguments.
Not too surprisingly, most lawyers are none to thrilled about the proposal to sanction lawyers. Some lawyers want to do away with privilege logs entirely. Apparently they only respond to discovery, and are not concerned about the other side withholding relevant evidence on bogus, stretched claims of privilege. I am. But like everyone else, I favor some kind of reform, maybe we do away with logging, but if it turns out the producing party deliberately withheld non-privileged documents, then we sanction them as Judge Facciola suggests. Better yet, suspend their license to practice law for a year. With that kind of threat I would trust without any verification. Otherwise, knowing how ill-defined most such objections can be, I want some sort of log. But perhaps it is categorized and not so specific, unless the requesting party specifies certain documents as warranting deeper scrutiny. I predict there will be a lot of discussion of these issues and many different proposals will be set out and discussed in the next few years, perhaps leading to a rule revision of some kind.
In the meantime, privilege logs are something we all love to hate, especially the poor souls called upon to work on them for days on end. This lament brought on one of the funniest moments at the event, the recitation by Kevin F. Brady of his:
TOP TEN THINGS NEVER HEARD ABOUT PRIVILEGE LOGS
10. Partner to Associate: Now that we have their privilege log, we can just put it in the file, I am sure that they accurately and adequately described everything.
9. Associate to Partner: my associate experience would not be complete until I get to work on a big privilege log project.
8. Judge to Lawyer: Do the parties have any contested items on the other sides’ privilege log that they would like me to review in camera this weekend?
7. In-House Counsel to VP Finance: We need to add another $25,000 to the litigation budget for this case so we make sure we have a first-rate privilege log.
6. Associate to Associate: Boy, working on this privilege log was a lot of fun, I can’t wait to do it over.
5. Judge to Lawyers: Before I conclude the Rule 16 conference I thought I would check and see how the parties are coming with their privilege logs.
4. Associate to Associate: I envy you, you always get to work on the good privilege logs.
3. In-house to Partner: If the judge doesn’t like our privilege log, I am fine with paying for your associates to redo it.
2. Associate to Partner: Our privilege log is so complete, I guarantee the judge will be happy with us.
1. Partner to Associate : Man, we really kicked their ass with our privilege log!
More From the What’s Next Panel
The What’s Next panel did more than talk about privilege and 502, they also broke the news about the new rule amendments discussed in part two. They had a few other coming soon type news reports. Ken Withers gave a report from Sedona that they will soon do much more than announce and explain the doctrine of Cooperation, but, as he put it, they will now try to operationalize it. The training will be done by mock exercises.
I did this with Judge Nolan at a Sedona event earlier this year. It helps to show other attorneys what cooperation looks and sounds like. Ken also said Sedona is going to create an online judicial forum as a resource for judges to exchange tips on case management. The focus there will also be on cooperation.
Judge Nolan was very proud of her Seventh Circuit e-discovery pilot program, as she should be. She and other panelists expect to see more lists of best practices like this coming from other courts around the country. Now retired Judge Nolan, who will soon work as a mediator through JAMS, also likes the new Northern District of California work that just came out, especially their checklist. I have already incorporated the Seventh Circuit work into my collection of attorney best practices, and will study and include the Northern District work soon. Look for that in future expansions of the EDBP.com and an upcoming blog.
It was interesting to see how all of the practicing attorneys on the What’s Next panel asked for more guidance from judges and more judicial activism. They want the judges to be the ones who push for progress and change. The judges on the contrary want the Bar groups to take the lead.
The only attorney who struck a slightly different tone was Ken Withers, who is a scholar (the Guru of Sedona). He does a tremendous amount of training work with other attorneys, but especially with judges. It seems that half the federal judiciary knows Ken and his big cowboy hats. Ken is not, however, a practicing attorney. He does not represent clients, nor deal with opposing counsel. He mainly sees lawyers and judges who come to events for training. The cream of the crop. We practicing attorneys get to see everyone (such a privilege), including the attorneys and litigants who hate e-discovery and everything it stands for.
So Ken is special and different from us practictioners. Maybe that explains Ken’s slight divergence from the practicing lawyers on this panel presentation. Ken said judges cannot do it alone, that attorneys have to be involved and build consensus between attorneys, judges and litigants. Hard to argue with the voice of reason like that, but the practicing attorneys seemed lukewarm to that idea. They know their local bars and would rather have their bar tenders, the judges, pour their elixirs.
I get the feeling that judges are not comfortable with the profession looking to them for leadership and are reluctant to be proactive. This is seen, for instance, by the fact that no one but Judge Grimm on the judge panel has taken the initiative to make a 502 standing order. That’s too bad. As a practicing attorney I too prefer to look to the judges and want an active judiciary. We practicing attorneys know full well the depth of ignorance and disagreements in Bar groups, and the many obstacles, including client representations and conflicts, that make consensus and leadership by most private attorneys very difficult.
Judges, on the other hand, are more independent, and they can not only argue the law, they can make it, subject only to appellate review. Since appellate courts almost never intervene in discovery, the judges have a great deal of power and discretion in this area. Moreover, unlike lawyers and partisan Bar groups, judges are not beholden to anyone but reason, truth, and justice. Plus, if and when they reach District Court Judge level, they are appointed for life and can pretty much do what they want subject to appellate review.
Yes. Judges are well positioned to lead and I suspect many of them will in the coming years, including Vice Chancellor J. Travis Laster in Delaware Chancery Court, another person much talked about at Georgetown, although he did not attend. See NEWS FLASH: Surprise Ruling by Delaware Judge Orders Both Sides To Use Predictive Coding. There are many Judge Learned Hand types waiting in the wings, I am sure. They need to remind us of what every first year law student is forced to learn (and most soon forget) that although in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. T. J. Hooper decision? T. J. Hooper 60 F.2d 737 (2d Cir.) See Does Your CAR (“Computer Assisted Review”) Have a Full Tank of Gas?
Judges’ Pet Peeves About Lawyers
During the final judges panel Ariana J. Tadler, shown right, asked another good question of the judges: what lawyer mistakes do you see that really bother you, or something like that. We then got to find out what things that lawyers do, and don’t do, that the top e-discovery judges in the country don’t like. Here is how they responded:
- Judge Nolan – lawyers don’t state facts to support their burdensomeness arguments in motions for protective orders.
- Judge Francis – failure to engage on cost shifting and sharing. And reliance on outdated search protocols. Failure to embrace new methods. Inertia.
- Judge Rodriguez – drive by meet and confers.
- Judge Garcia – form objections without a factual basis, for example, form objections to Rogs. Read Mancia!
- Judge Scheindlin – under use of proportionality arguments. Underused for decades. Also, over-broad demands for far more documents than they need. Request more than they need or want.
- Judge Facciola – lawyers don’t focus on what facts are truly in dispute.
- Judge Grimm – litigation by committee of large cases. Camel is a horse designed by a committee. Litigation is becoming like a tennis match where committees of lawyers focus in and out of a case. There is an economic incentive for lawyers to do excessive discovery. Lack of clear thinking of a case and what is needed; instead it is Balkanized. No one person in control who knows all case. Especially in complex cases.
- Judge Scheindlin – beef with discovery is that is not targeted. Not taught in law school. She always strikes “any and all” when seen in a discovery request.
Many of the judges were also upset about Rule 502 and complaining that lawyers were not seeking a protective order under the rule like they should. So, Craig Ball in the audience raises his hand and innocently asks: Why don’t judges enter a standing 502 order? Lots of shuffling after that one. It turns out that only Judge Grimm does that in all cases. Judge Francis has sometimes sua sponte done so. The rest did not want to intervene as maybe lawyers have a reason.
Newsflash for the judges: there is no good reason lawyers do not ask for a 502 order. Most of the time they, the lawyers before you, simply do not know any better and or suffer from inertia, as Judge Francs so aptly puts it. Go ahead and enter the order as a matter of course, local rule, and let the order provide that the lawyers can ask to have it vacated if they want. We need more judicial activism when it comes to protection of privileges. That is part of the solution to the privilege logs that we all agree are out of control. As we used to say in the sixties, if you are not part of the solution, you’re part of the problem.
I do not much like privilege logs either, but I certainly do not want to eliminate them entirely as some advocate. I expect that this topic will flame out and lacks traction for the long haul needed for actual rule reform. In the meantime, I suggest lawyers look for private agreements and case by case relief. Local rules by judges interested in experimentation would also help.
I thought the main point the judges made about lawyers was that nobody really knowing the key facts in dispute. As Judge Grimm said, we need clear thinking about cases and what discovery is really needed. We also need more judges who will encourage a focused approach and allow targeted, phased discovery.
We also need better informed litigants, primarily the large corporate serial litigants, who understand what Judge Grimm calls the economic incentive for lawyers to do excessive discovery. It is like rewarding the stupid for their own negligence. Billing-by-the-hour tempts too many to churn and burn. Many are at least subliminally influenced by this crazy bill-by-the-hour system. They always seem to err on the side of over-abundance of caution. They over-review and convince their clients they are being prudent, aggressive even, in the protection of the client’s interests. These excessive discovery services, which often look like ocean boiling to me, just happen to also fill their coffers.
This is a kind of unfair socialist system where honest, knowledgable, efficient lawyers are taxed, and wealth redistributed to uninformed and inefficient litigators, often greedy ones at that. What kind of system is that? One that clients and judges can reform, as it is in their economic interest to do so. But not so easy for practitioners to reform because a majority benefit from it.
Santa may know whose naughty or nice and reward accordingly, but most clients do not. They are dazzled by the country-club smile, the blustery shows of aggressive prudence. They do not know if their lawyer knows what he or she is talking about, or not. Most clients do not really understand when e-discovery services are excessive and by how much. In fairness, that can be very hard to detect and measure, especially in large, complex cases. But ultimately it is a matter of lawyer attitude, knowledge, skill-set, and economic incentives. Does your lawyer really know and understand e-discovery, or is he or she a mere dabbler? Is she a trial lawyer one day, and an e-discovery expert the next? A specialist in a substantive area of law in addition to e-discovery procedural-skill-set? The bottom line is the number of hours the expert puts into e-discovery times the quality of that time: S=T*Q
This is the age of specialization in the law. An age where law is supported like never before by technology and science. The knowledge and skills needed for a lawyer to do discovery in today’s technologically advanced culture are hard to attain. It is even more difficult to render those services in an efficient manner. That is why a new type of legal specialists is needed. Right now there are just a few hundred full-time e-discovery-only lawyers in the country, perhaps less. (This count excludes contract reviewers.) So the reality is, when it comes to e-discovery, most lawyers today are naughty, not nice. Naughty out of negligence, not malice, but it is a negligence that the attorney fee system rewards.
After that Christmas rant I feel that I should end on a more joyous, comedic note, and so share this Christmas video. It is not a cutesy one, more like stupid and annoying, as you might expect from a YouTube seen over 18,000,000 times, but at least it is not a Gangnam style video.