This is a continuation of my last blog. Please read Part One first.
Highlights of Judge Grimm’s Discovery Order
First, it is important to note that Judge Grimm’s Discovery Order is an actual Order that he enters at the beginning of many cases. It is not a recommendation, guideline, or suggested protocol. The Maryland District Court’s Suggested Protocol for Discovery of Electronically Stored Information is a separate document that remains in effect. If you do not follow a Suggested Protocol, you may get a grim scowl and a tsk-tsk. If you do not follow an Order, you may go to jail. Just ask Victor Stanley. Even though the Maryland ESI Protocol is a recommendation, not an order, it is still a valuable document for all e-discovery attorneys. It contains good advice for best standards, especially concerning 26(f) conferences. I cannot think of a more complete checklist for possible ESI issues to be addressed at that conference.
The Judge Grimm Discovery Order goes well beyond serving as a guide to 26(f). It requires attorneys and parties practicing before Judge Grimm to conduct discovery proportionally, and then goes into specifics as to what that means in his courtroom. Proportionality is the essence of this entire order. Proportionality is in turn a key component of another theme in Judge Grimm’s Order, Cooperation, which is the fifth and perhaps most important step in the EDBP. The Order does not just invoke vague concepts. It specifies that any discovery is disproportional that exceeds certain specified limits, at least to phase one discovery. These phases are also defined in the Order. Any discovery beyond the permitted scope is forbidden absent a motion establishing good cause and an order from the court. Moreover, the standard Discovery Order goes on to state that if the court determines that additional discovery is appropriate, the Requesting Party will be required to show cause why it should not be ordered to pay all or a part of the cost of the additional discovery sought.
The specified limits of proportionality for phase one discovery are:
- RFPs shall have no more than 15 categories of documents.
- Only 10 custodians shall be searched.
- ESI more than 5 years old shall not be included.
- Only reasonably accessible sources shall be searched.
- No more than 160 hours shall be expended for search and review services, which are in turn specifically identified to include:
- identifying potentially responsive ESI,
- collecting that ESI,
- searching that ESI (whether using properly validated keywords, Boolean searches, computer-assisted or other search methodologies), and
- reviewing that ESI for responsiveness, confidentiality, and for privilege or work product protection.
Judge Grimm’s Order goes on to specify that:
The producing party must be able to demonstrate that the search was effectively designed and efficiently conducted. A party from whom ESI has been requested must maintain detailed time records to demonstrate what was done and the time spent doing it, for review by an adversary and the Court, if requested.
Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology.
These are meaningful requirements, especially since they are embodied in a court order. This kind of detail provides a good opportunity for a judge to sniff out who the true cooperators in a case are. It allows them to see through the facade of lies they are often presented with, where both sides accuse the other of being uncooperative.
Sometimes that is true, sometimes both are non-cooperators (think Beavis and Butthead). But sometimes one side is making a bona fide good faith effort to cooperate, and the other side simply refuses. As we like to say in litigation, it takes two to tango. If the other side is stuck in a scorched earth discovery tactic mentality, they will never truly cooperate, but they may pretend in order to try to fool the judge. (Think of the famous phony Eddie Haskell on the Leave It To Beaver tv show.) I’ve seen this kind of tactic for years, especially by lawyers who suffer from ego inflation and like to egg their clients on by puffing about how aggressive and tough they are. It is not only immature, it is unethical. The best practice for discovery is Cooperation, and in Judge Grimm’s court that is mandatory.
To make sure the Cooperation requirement is clear Judge Grimm specifies in his Order that:
[T]he parties and counsel are expected to work cooperatively during all aspects of discovery to ensure that the costs of discovery are proportional to what is at issue in the case, as more fully explained in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 357–58 (D. Md. 2009). The failure of a party or counsel to cooperate will be relevant in resolving any discovery disputes, including whether the Court will permit discovery beyond Phase 1 Discovery and, if so, who shall bear the cost of that discovery. Whether a party or counsel has cooperated during discovery also will be relevant in determining whether the Court should impose sanctions in resolving discovery motions.
See how he is tying cooperation to money? Good work judge. That kind of penalty is the only thing the Eddie Haskells of the world understand.
Clawback Best Practices
As important as proportionality and cooperation are, there is more to Judge Grimm’s Order than that, much more. Perhaps the most important additional aspect of the Order is the Clawback provision, which fits into step 8 of the EDBP as part of Protections.
Grimm’s Order automatically imposes a 502(d) mandate that an unintentional disclosure of privileged materials shall “not constitute a waiver in this proceeding, or in any other federal or state proceeding.” The language makes the gotcha provisions of 502(b)(2) inapplicable. Here is the exact wording of his Order:
In accordance with Fed. R. Evid. 502(d), except when a party intentionally waives attorney–client privilege or work product protection by disclosing such information to an adverse party as provided in Fed. R. Evid. 502(a), the disclosure of attorney–client privileged or work product protected information pursuant to a non-waiver agreement entered into under Fed. R. Evid. 502(e) does not constitute a waiver in this proceeding, or in any other federal or state proceeding. Further, the provisions of Fed. R. Evid. 502(b)(2) are inapplicable to the production of ESI pursuant to an agreement entered into between the parties under Fed. R. Evid. 502(e). . . .
I agree with Judge Scheindlin, who, with Judge Grimm by her side at a CLE several years ago, shortly after 502 was enacted, wondered aloud why all judges did not simply enter a 502(d) order in all of their cases, instead of waiting for lawyers to do it, and perhaps screw up in the process. Now Judge Grimm has done just that. He enters the 502(d) broad scope claw back protection order sua sponte, and does so, as far as I can see, in all cases where there is likely to be e-discovery. A handful of other judges around the country are starting to do the same.
Count yourself lucky if you are one of the few lawyers in the country with an enlightened judge like that who is attempting to rehabilitate and use the often misunderstood provisions of clawback Rule 502. If you are in the vast majority, and your judge does not have a standing 502(d) order, then by all means raise the issue. Ask for blanket protection under Rule 502(d) and avoid the reasonable efforts gotcha provisions of 502(b)(2) (“the holder of the privilege or protection took reasonable steps to prevent disclosure”). See eg. Innovate Conference Report: Judge Facciola and Judge Nolan to Speak on Clawbacks, Cooperation and Competence; Another Clawback Enforcement Order Shows the Importance of the Selection of Quality Vendors; and, Clawbacks: Trick or Treat?.
As we all know many attorneys these days are mere poser cooperators. They are in truth dementors in disguise, just waiting to steal your clients secrets in large-scale productions. Large scale reviews are dangerous and expensive. All good lawyers need the Harry Potter type protective Patronus spell that only a 502(d) order can provide.
The Discovery Order Judge Paul Grimm uses in his cases serves as an excellent best practice model for all judges and attorneys in the country. While different proportionality limits may be used that vary from Judge Grimm’s suggested maximum limits of 15 categories, 10 custodians, 5 years, and 160 hours, this is a good start for most sophisticated litigation.
Of course, even Judge Grimm’s maximums would be overkill for the average small federal case, and I doubt he enters this order for such cases. Many small cases can be fairly and proportionally resolved with discovery from only three custodians, or perhaps only one. It all depends on the case. The same comment applies to the 160 hours. At only $350 per hour, which is on the low side for federal litigation, that would be an expense of $56,000.00. This would be far too much time and money to spend on document disclosure in an average case with only $100,000 in damages. Proportionality depends on the particular facts and issues in the case. It depends, among other things, on the likely value of the case and value of the proposed discovery.
Postscript For Vendors and Software Developers
The proportionality and cooperation issues addressed in Grimm’s Discovery Order are essential problems that lawyers practicing in e-discovery face every day. These problems, and the related legal services, are what Electronic Discovery Best Practices, EDBP, is striving to model. EDBP also tries to articulate best practices to help lawyers to meet these challenges. E-discovery vendors should look to these legal services when considering their future product lines. They should not only think about the EDRM, and the needs of lit-support departments, but also think about the EDBP, and the needs of practicing attorneys.
Technological tools are needed to assist lawyers with all 10 EDBP steps, but especially with Step 5, Cooperation. For instance, to assist us in the many legal services that call for cooperation in discovery, we lawyers need:
- Software to help us to evaluate a case. To put a fair and convincing number on the case, and thus the likely proportional spend on discovery.
- Software to help us to predict discovery costs. This again supports proportionality and bottom line driven review methods.
- Software designed to make the entire discovery process more systematic and repeatable.
- Software to allow lawyers to build on past projects, and not make every review a new one-off.
- Software that allows us to put reliable metrics on proportionality in all cases by reference to past similar cases and industry averages.
- Software to help parties design win/win joint discovery plans in 26(f) and related conferences; including joint motions for 520(d) clawback orders, and privilege category designations.
- Software to facilitate predictive coding cooperation, including predictive coding training transparency, grey-area document disclosures, search-method-only disclosures. I could go on.
- Software to facilitate transparent confidentiality protections and speedy shared privilege logging.
- Software to assist in mutually beneficial settlements; not just of discovery disputes, but the whole case.
- Software to assist in mediation.
- Software to assist in referrals to special masters.
The list goes on and on. Just examine what practicing lawyers do, and move beyond a typical vendor’s near myopic focus on tech support.
Here is another example of this lawyer service orientation, one that focuses on the all important step ten – Evidence.
We have all heard of the notorious Evidence Eliminator software, how about Evidence Maintainer? It could build the authentications needed for the admissibility into evidence of any ESI collected, including such things as chain of custody forms, secure hash value vaults, affidavits, and deposition questions. It would be built to comply with the Federal Evidence Code, and state codes, and have input from the country’s leading ESI evidence experts, lawyers all of course. Another of its features could make it impossible for ESI on a computer to be changed or deleted, including metadata. Consider this scenario: the bad guy only thought he double-deleted the incriminating evidence on his employer’s lap top, in fact Evidence Maintainer™ kept it all in place, and, as an added bonus, tied up the attempted spoliation into a nice piece of self-authenticating, admissible evidence.
I would love to be able to tell clients to install a product like Evidence Maintainer™ on certain employee computers and then advise them to flick on the activate switch when we suspect unlawful activities. It would be much easier to nail them that way. It would also make it easier at evidentiary hearings, especially after a few judicial experts like Judge Grimm accepted the built-in authentication procedures. Build this for lawyers, not techs, although techs may still be needed to install and activate. Focus on evidence law, not hash values. That is my basic message here, and the underlying purpose of EDBP.
All of the ten steps in the EDBP could use new technological tools to assist lawyers in their legal analysis, decision-making and other legal tasks. The need for these new lawyer-assist-tools is strong in the now very complex world of electronic discovery. A couple of the tasks are already pretty well covered by existing software, such as step two, Litigation Hold Management, and step seven, Legal Search and Review. But even with those, there is always room for improvement and enhancement by including the other steps, especially some of the new cooperation functions I have proposed.
Some of the ten basic types of discovery legal services identified in the EDBP could be helped by fairly simple decision tree type analysis software, with links to legal authority (updated by subscription) and form variations, such as step three, interviews, or steps four and six, analysis as to what ESI should be collected and culled in any particular case and how (essentially a combination of case analysis, proportionality and risk management analysis). Although the new software forms may start simple, advanced artificial intelligence type software will inevitably follow for all ten steps in the EDBP, just like it is has already started to do for step seven, search and review.
Lawyers need help in all of their core tasks, just a much as any other professionals and businesses. It is only a matter of time before bold legal technology companies step up to the plate. The below diagram suggests the kind of software suites of the future that I envision will help the legal profession with discovery in the next decade or so.
Judge Grimm’s Discovery Order is a significant accomplishment and help to many lawyers. Legal doctrines like cooperation and proportionality are good, but they are not enough. We lawyers want and need more. We need technological tools too. And we need these tools to tie in seamlessly with the law. Vendors consider the law and lawyers in your future product releases. Do not just focus on technology and improving on what you have already created in the past. Look to Electronic Discovery Best Practices and build out an entire suite of software to assist lawyers in their legal work, especially Cooperation tools, some possibilities for which I listed above.
What will cooperation enhancing software of the future look like, software tied to the fifth-step of the EDBP? It is impossible to know for sure, but a few things are probable, including, from a high level perspective, the likely continued growth of holistic, online systems and software as a service. The cloud is here to stay, but security will take on more and more importance. On a more detailed level, future cooperation enhancing software, either stand alone, or as add-ons to existing software, will probably have:
- Multiple social media type components to improve communications (not actually on Facebook or Twitter, but like them).
- Video communications built-in for easy face-time when and as desired.
- Multiple levels of transparency and security. You will be able to dial the trust levels up or down, depending on who you are dealing with and what you want to share. This can be tied into a variety of functions, including quality control tests in search and review software.
- Integration with existing e-discovery software, including existing old-school EDRM based technology, such as software and hardware for:
- data hosting systems;
- search and review software;
- project management software;
- production tools; and,
- maybe even privacy encryption tools.
- Enhanced, creative visualizations with dynamic properties, including animations, with gamification and narrative features.
- Multimedia report output capacities with customization and sharing features.
- Links to multiple other tools, including legal authorities and brief banks, and maybe even links to online legal training, like I offer.
- Reliable and easy to use metrics features customized to particular cases, case types, clients, or industries.
- Enhanced, and more sophisticated sampling features. You may recall that I called for a “random button” on review software five-years ago for sampling. It took a few years, but now the best programs all include this feature. They now need to take this feature to the next level. For instance, the next generation of AI-enhanced review software (predictive coding) should include much more sophisticated stratified sampling functions and also binomial confidence interval calculations.
- Entirely new features and abilities that no one has even thought of yet, many likely tied to new artificial intelligence enhancements and big data mining functions.
- Convergence of software into unifying platforms, think one-stop-shopping, although at first some new types of stand-alone software are likely, especially from start-ups.
- It may even come with a large white cowboy hat blessed by Ken Withers himself (or maybe not).
Cooperation software could and should have many different applications. For instance, how about software functions just designed to facilitate 26(f) conferences with up-to-date legal references tied to particular jurisdictions? Dial in your judge, your court, your case type. Many different types of technological tools could help lawyers to cooperate, including existing ones like videotaping 26(f) conferences that Judge Waxse made famous. But there are many tech tools that no one has built yet, or even thought of.
Since cooperation is so important, and many lawyers seem to need help to do it, I suggest vendors focus on that first. I will try to help with general design if I can find time. As a practicing lawyer and software geek since the late seventies, I know what lawyers need. I have many new product ideas, but the hard part is to implement the ideas, to create the products. The need for computer help is strongest in our cooperation activities, so I suggest you start there. But don’t just work on cooperation alone, even though it does touch on all other discovery services as exemplified in the EDBP chart below. We lawyers need an entire suite of products designed to assist our legal services. Indeed, beyond discovery, all legal tasks need technological help. The automation of legal practice has really just begun. Could the days of Robot, Robot and Losey be too far off?
There is a world of unmet needs in legal services that very few software vendors are even considering. As Silicon Valley has found out, the race to meet future technology needs, to success, goes to the bold, the fast, who build products with impact, openness and social value. For background on what I am talking about see:
- My editorial in Law Technology News, Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way,
- “The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic,
- Impactful, Fast, Bold, Open, Values: Guidance of the “Hacker Way”, and
- The Solution to Empty Suits in the Board Room: The “Hacker Way” of Management – Part One and Part Two.
We need the new types of cooperation enhancing software here proposed, we need it to keep discovery vital and strong in our legal system. We need an entire suite of software designed around the EDBP, around what practicing lawyers actually do. We need it if we are to maintain our system of justice, a system based on truth, on evidence, and not just debatable policy and power. There can be no higher social value than justice, at least as far as lawyers are concerned. Vendors serving lawyers should get with the program and promote the same social values.
Let us make our new legal technologies creative again! Vendors should adopt the good Hacker Way, so that the legal profession can keep up with the times. We must avoid the complacency of the same old technical modalities and conceptual frameworks. Look to what lawyers really do in discovery, look to the EDBP.com, especially Cooperation. Contact me if you want to discuss this further or otherwise have new products ideas that fit into this conception of the EDBP Software Suite.