Jerry Seinfeld Meets eDiscovery: Rules of the Game and the Pony Scene

May 14, 2022
Ralph Reading the Rules

I could not resist writing about a new case that mentions electronic discovery (yes, I have a standing Lexis search), not because it creates any kind of great precedent or anything, but because it involves one of my all-time favorite comedians, Jerry Seinfeld. Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196 (AJN), (SDNY, April 29, 2022). The opinion is by Judge Alison Julie Nathan, who was sitting by designation after her elevation on March 30, 2022, to the Second Circuit Court of Appeals. The opinion itself, is, with all due respect, kind of like the Seinfeld’s series. It is not about anything terribly important. It’s not about much really. But still, I found it very funny in a cynical, jealous lawyer sort of way and it does have an important, between the lines, message. Read on if you are into that sort of thing.

Rules of the Game

To lay the proper groundwork for this blog about Seinfeld (personal opinions only), I have to start by sharing, for fair use educational purposes only, one of my favorite Jerry Seinfeld quotes. You’ve all heard it, the one about lawyers and judges. It explains my photo.

“What are lawyers, really? To me a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has read the inside of the top of the box. I think one of the fun things for them is to say, ‘objection.’ ‘Objection! Objection, Your Honor.’ Objection, of course, is the adult version of, ‘’fraid not.’ To which the judge can say two things, he can say, ‘overruled’ which is the adult version of ‘’fraid so,’ or he could say, ‘sustained,’ which is the adult version of ‘Duh.’”

Jerry Seinfeld, Seinfeld, Season 4: The Visa

Who Wouldn’t Love A Pony ?

I have seen every episode of Seinfeld many times. The famous Pony scene in Season 2, Episode 2, immediately came to mind when I read Charles v. Seinfeld. As you read on, see if you can figure out why that popped into my head. In case you don’t have instant recall of this great, family dinner table scene, check out this excerpt on YouTube. Better yet, treat yourself and watch the whole episode. It’s one of the best.

Before I do a fair use educational quote of the Pony script, let me share another Seinfeld quote, one that is supposedly serious. Being the naive idealist that I am, I believe it. Anyway, Jerry is credited with saying: “I like money, but it’s never been about the money.” I get that, as I truly feel the same way. Still, I do like money as much as the next person, maybe even the next lawyer (nah, probably not), and money is what Charles v. Seinfeld is all about. It considers a request for an award of fees and costs in favor of the prevailing party, Jerry Seinfeld, which includes costs of $32,692.21 for electronic discovery database hosting fees. Charles v. Seinfeld at *18 (by the way, check out Fn 5 on that page for a great Seinfeld-like note by the obviously very sharp, Judge Nathan: “There is a $0.30 discrepancy in the costs requested ($100,918.71) and the sum of the component costs.”)

Here are the lines and scene that came to mind when I read Charles v. Seinfeld. First, to set the stage, Manya is an elderly Jewish immigrant relative who is hosting a family dinner that Jerry and Elaine were roped into attending. Jerry and Elaine were bored and wanted to leave. At Elaine’s prodding, Jerry started to rant about children who had ponies.

Elaine: What about Ponies huh? What kind of abnormal animal is that? And those kids who had their own ponies.

Jerry: I know. I hated those kids. In fact, I hate anyone that ever had a pony when they were growing up.

Manya: I had a pony!

Jerry: Well, I didn’t mean a pony per se

Manya: When I was a little girl in Poland, we all had ponies. My sister had pony, my cousin had pony. So, what’s wrong with that?

Jerry: Nothing. Nothing at all. I was just expressing

Helen: Should we have coffee? Who’s having coffee?

Manya: He was a beautiful pony. And I loved him!

Jerry: Well, I’m sure you did. Who wouldn’t love a pony? Who wouldn’t love a person who had a pony?

Manya: You! You said so!

Jerry Seinfeld, Seinfeld, Season 2, Episode 2.

At the end of this scene, Manya storms out, very upset at Jerry, saying “That’s it! I had enough!” Unfortunately, Jerry learns the next day that Manya died later that night.

Charles v. Seinfeld: A Run of the Mill Frivolous Copyright Case

If you are really interested (I’m not) in the dubious merits of the case, see the 2019 order granting the defendants’ motion to dismiss (Fraid-so!) by then District Court Judge Nathan. Charles v. Seinfeld, 410 F. Supp. 3d 656, 2019 U.S. Dist. LEXIS 169543, 2019 WL 4805684 (S.D.N.Y., Sept. 30, 2019). It is enough for my purposes to hear Judge Nathan’s later summary of the case in her April 29, 2022 order ruling on defendants’ motion for attorneys’ fees and costs under 17 U.S.C. § 505.

Plaintiff Christian Charles, an award-winning writer, director, and producer, alleged copyright claims against Jerry Seinfeld and several related Defendants related to the show Comedians in Cars Getting Coffee. The Court ultimately dismissed the second amended complaint on statute-of-limitations grounds, explaining [*2] that Charles was on notice of his claims since at least 2012 but did not file suit until 2018, far outside the three-year statute of limitations for such claims. Id. at 8.

Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196, *1-2, at pg. 5 of 13, (SDNY, April 29, 2022),

The Second Circuit affirmed (Fraid not. Duh!) the Sept. 30, 2019 dismissal on June 18, 2020. The obvious Statute of Limitations winner, Jerry Seinfeld, et al, then moved for fees. That’s when the real fun began. To get an award of fees under the copyright statute Seinfeld’s attorneys had to show that Charles’s claims were objectively unreasonable. They failed to convince the Magistrate (Fraid not!) who was assigned to hear their motion for fees and costs, Judge Katharine H. Parker.

Seinfeld then objected to Judge Parker’s Report and Recommendation and Judge Nathan agreed (Fraid so. Duh!) with Seinfeld. Judge Nathan concluded that Charles’s claims were objectively unreasonable and that other relevant factors favored awarding Defendants’ attorneys’ fees. Id. She ordered Charles to file a brief on “the amount of the fee award,” with particular attention to the relative financial strength of the parties. Id.

Charles didn’t do that, instead he re-argued the merits of the Magistrate Judge’s report and recommendation denying any award at all. That usually upsets a judge, but here, Judge Nathan, now an appellate judge sitting by designation to wrap up old business, showed great restraint. She heard the procedurally improper, caveman lawyer type motion for rehearing and ruled on it here. She denied the rehearing argument (Duh!) and went on to address the issue of the amount of the award with no help from Charles. Id. at *3-5 at pgs. 5-6 of 13. Who knows, that might have been a smart move on his part.

Seinfeld Attorney’s Fee and Costs Motion – Those Are Some Expensive Ponies!

Before we get to the ponies, remember that this case was decided on a motion to dismiss. There was no discovery. None. Yet, somehow Seinfeld’s attorneys incurred costs of $32,692.21 for electronic discovery database hosting. Hmm. They moved for an award of these costs and, of course, the motion was denied. They got nada, because, as all ediscovery lawyers know, the ancient federal costs award statute does not allow for ediscovery costs. Moreover, as Judge Nathan patiently explained, instead of just saying duh:

Similarly, the electronic database hosting fees are [*19]  very high and not properly imposed on Charles in a case that did not proceed to discovery. Defendants of course had an obligation to preserve relevant documents for discovery, as did Charles, but both sides bear and typically retain that cost.

Id. at *17 at pg. 11 of 13.

Seinfeld’s attorneys were, however, awarded costs of $92 for paper copies. I personally find that funny.

In another Fraid Not! type eliciting move, Seinfeld’s attorneys also asked for an award of costs of $66,386.26 for electronic research fees. Again, same result, zero award for that. (Duh!) As Judge Nathan ruled, it is well settled such charges are already accounted in the attorneys’ hourly rates and research time. Id. at *16 at pg. 10 of 13. Wish it were not so, but it is; besides, $66,386.26 is one large Westlaw or Lexis fee for a simple Statute of Limitations case. Plus, as everyone knows, including the judge I presume, law firms are not charged by the project.

Still, Seinfeld’s attorneys justified the reasonableness of the fees and costs award requested on the representation that these were the fees and costs at rates actually billed to and paid by their clients. Here again is Judge Nathan explaining that argument, one which I have carefully used myself, and I emphasize carefully, because the representations better be true. Note I have omitted the lawyers names here as I have no intent to offend and I understand their frustration perfectly well with the obviously very annoying opposing counsel.

Generally, an “attorney’s customary billing rate for fee-paying clients is ordinarily the best evidence of” a reasonable hourly rate.

According to the ______’s declaration, the rates listed above are those actually charged and paid by ___________ clients for comparable work. That weighs in favor of finding the rates reasonable, but is not dispositive.

Id. at *6, *9 at pgs 6, 7 of 13.

Now we finally get to the unusually large ponies, the facts that took my breath away, namely the hourly rates of the attorneys, the fees requested, and the things they billed their client for. They also seemed to shock Judge Nathan, a very experienced judge in New York City, where all of the judges have pretty much seen it all, and so that’s really saying something.

Defendants request a staggering $872,939.66 in attorneys’ fees and $100,918.71 in costs. … That fee amount is constituted by 1,465.9 hours of work completed by eight attorneys as well as paralegals and support staff…

Id. at *8 at pg. 7 of 13.

Wow. I’m staggered. All for a simple copyright case that the defense argued was frivolous and they won on a motion to dismiss based on an obvious statute of limitation defense. But wait, there are still more ponies. The senior partner in charge of the case represented that his hourly rate in 2020 was $1,550.00. Yup, that’s One Thousand, Five Hundred and Fifty Dollars per hour. Ok. I’m really impressed, maybe just a wee bit jealous. <Secret thought: I really need to raise my rates. I’ve read the rules on the back of many game boxes.> And that was two years ago. I bet his rate is even higher now.

But wait, my sisters and cousins have ponies too. The sixth year associate working on the case had a standard rate of $965 per hour. Gees! But wait, there’s more. Five first-year associates, yup, kids barely out of law school, had their own ponies. Their hourly rates ranged from $545 in 2018 to $650 in 2020. <Secret thought: All right, that does it! I’m raising my rates.> There’s still more. Everyone had ponies. Three paralegals working on the case had standard rates of $431.25 per hour. If you are not astonished yet, consider this additional detail by Judge Nathan, who, along with her clerks, obviously put a lot of work into this. But I guess “a lot of work” is relative as these comments show.

A few examples demonstrate the excessive nature of the hours billed. First, take the series of motions to dismiss that Defendants filed. The lead associate, _______, alone billed 120 hours to research and draft the initial motion to dismiss; an additional [*14]  130 hours to update the motion following the first amended complaint; and a further 37 hours to update it following the second amended complaint. And partners and junior associates also billed hours to contribute to and review this work. The Court finds substantial overlap in the authorities across the three briefs filed in support of the motions to dismiss, suggesting that the hours billed to modify later briefs were in large part unnecessary. And the approximately 180 hours spent by associates to analyze Charles’s response and to draft a reply exacerbates the issue. At bottom, given the straightforward statute-of-limitations defense at the center of this case, Defendants’ request of $300,000 for drafting just the moving briefs alone is plainly unreasonable.4

FN 4- As Defense counsel observed at the oral argument before Judge Parker: “There was no novelty here. There was no mystery here. This case was as dead on arrival as a copyright case can be. I’ve been practicing copyright for a lot of years, 30 years.” Tr. at 13, Dkt. No. 135.

Id. at *13-14 at pg. 9 of 13.

I could go on, but the icing on the pony cake for me was that the defense attorneys put on and billed for a mock argument. Not only that, they even billed for first years to watch it. I kid you not. Here is Judge Nathan again and her dry wit. I’m pretty sure she is a Seinfeld fan too.

Third, the records reflect hours billed for multiple attorneys, including junior associates, to attend a mock argument and oral argument. Typically, courts do not pass the cost of associates observing mock arguments or oral arguments on to the opposing party in a fee award.

Id. *15 at pg. 9 of 13.

Conclusion – DUH!

Judge Alison Nathan

Second Circuit Court of Appeals Judge Alison Julie Nathan, sitting by designation as the former trial judge of Charles v. Seinfeld, considered Seinfeld’s motion for award of fees of $872,939.66 and costs of $100,918.71. She also considered the objections of the plaintiff, Charles. She ruled and awarded only $28,750 in attorneys’ fees and $92 in costs for a total of $28,842. Judge Nathan did make the award joint and several against the plaintiff and plaintiff’s counsel. Some small solace to Seinfeld’s attorneys. They were pushing hard for personal sanctions against opposing counsel. On the other hand, as a final gesture, that seems funny to me at least, Judge Nathan said Charles and his attorney could make these payments in equal monthly installments over a ten-year period.

Dear fellow lawyers, even if opposing counsel is beyond annoying, a real caveman, don’t kid around with a judge in seeking sanctions. This is, in effect, what was going on here, seeking sanctions in the form of fees against opposing counsel. The judges have not only read the rules of the game, but they know them well and know how to apply them fairly. Do not try to game the system with inflated demands.


Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education

April 9, 2022

Ralph_matrixTHIS BLOG WAS ORIGINALLY POSTED IN 2009. IT IS ONE OF MY ALL-TIME FAVORITES. To me it seems like a Classic, just as relevant today, in 2022, as when first written. We are still stuck in a cave of shadows and lies. Only the true facts, seeing things as they are, will set us free. Perhaps eDiscovery, and the change in perspective it can provide for lawyers, judges and others, can liberate us from propaganda, lies and shadows. Perhaps it can help lead us into the light.

_________________

matrixThe most famous allegory in all of Western Civilization is that of Plato’s Cave. This conceptual image is based on deep insights into the human condition. For millennium this analogy has allowed people to better understand each other and the world in which they live. As proof of its eternal veracity, I offer it as an explanation for why most lawyers today love paper and hate electronic discovery. The Socratic approach also points to a way out of the legal profession’s current crises of e-discovery competence; it suggests that a new form of education is imperative. The alternative may well be radical inter-generational disruptions and discontinuities in the practice of law.

Plato’s Cave

First a refresher on Plato’s Analogy of the Cave. It is found at the beginning of book seven on The Republic, which was written by Plato in 380 BC.  It takes the form of a dialogue between Socrates and Plato’s brother, Glaucon, concerning education. Socrates tells the story of prisoners who have been held captive in a cave all of their lives. They are chained so that they can only see shadows on the wall of people walking on a path behind them in front of  a fire. They can not directly see the people or the things that they carry. They can only see their shadows cast on the cave wall. That is all they have know all of their life and so they mistake the shadows for the people and things themselves. They are totally absorbed by the shadows and have become quite adept at interpreting what they supposedly mean. Here is a common graphic illustration of the cave set up.

Platos cave from The Republic

One day a prisoner is freed of his chains and taken out of the cave and dragged up into the light. After a long period of adjustment he is able to see in the new light filled world and discover that he had been mistaking shadows for reality. He returns to tell his prisoner friends, but has trouble adjusting to the dark and shadows. He cannot still see the fine distinctions that the prisoners make out in the flickering forms. They still cannot turn around or leave the cave. They still see only shadows and know nothing else. They do not believe their returning friend. He does not see the shadows as they do. They think he is quite mad. In fact, they hate him for his better-than-thou stories and would kill him if they could. To refresh your memory with more of the details of the story of Plato’s cave, watch this cool clay animation version. I am sure Socrates would have approved.

Want an even more detailed refresher of the story of Plato’s Cave? Then watch this longer video, featuring a reading of a translation of this segment of The Republic dialogue. Note how in today’s world the cave shadows have been replaced by television images and other mass media.

By the way, The Matrix movie is the latest popular cultural expression of this perennial idea. Check out this video which spells that out for you.

Now read the original words of Plato. After telling the story, Socrates explains to young Glaucon the significance of the analogy of the cave to life and education.

And again, do you think it at all strange, said I, if a man returning from divine contemplations to the petty miseries of men cuts a sorry figure and appears most ridiculous, if, while still blinking through the gloom, and before he has become sufficiently accustomed to the environing darkness, he is compelled in courtrooms or elsewhere to contend about the shadows of justice or the images that cast the shadows and to wrangle in debate about the notions of these things in the minds of those who have never seen justice itself?

It would by by no means strange, he said.  …

Then, if this is true, our view of these matters must be this, that education is not in reality what some people proclaim it to be in their professions. What they aver is that they can put true knowledge into a soul that does not possess it, as if they were inserting vision into blind eyes.

They do indeed, he said.

SocratesBut our present argument indicates, said I, that the true analogy for this indwelling power in the soul and the instrument whereby each of us apprehends is that of an eye that could not be converted to the light from the darkness except by turning the whole body. Even so this organ of knowledge must be turned around from the world of becoming together with the entire soul, like the scene-shifting periactus in the theatre, until the soul is able to endure the contemplation of essence and the brightest region of being. And this, we say, is the good, do we not?

Yes.

Of this very thing, then, I said, there might be an art, an art of the speediest and most effective shifting or conversion of the soul, not an art of producing vision in it, but on the assumption that it possesses vision but does not rightly direct it and does not look where it should, an art of bringing this about.

Yes, that seems likely, he said.

This quote is from my favorite translation from the ancient Greek by Edith Hamilton and Hunington Cairns, published by Princeton University Press as part of the Bollingen Series.

Paper Lawyers

Lawyers today, much like the prisoners of Plato’s cave, love paper because that is all they have ever known. They grow up in a paper world. They learn how to read on paper. They study paper books. They go to law schools where they learn that legal documents are made of paper. Their professors are just like them. They surround themselves with great piles of paper literature and paper case law. They teach using paper books and paper flip charts and require students to write papers. When taking evidence and trial classes, law students are taught with paper documents, shown how to test the authenticity of paper records and how to have paper admitted into evidence.

paper doll cutouts

After school, older lawyers give them an endless supply of extra long paper, called legal pads, and do their best to keep them up to their neck in paper work. They are shown how to generate papers, copy papers, pile papers, file papers, notarize papers, shuffle papers, staple papers, clip papers, highlight papers, redact papers, watermark papers, and even add paper stickums to paper. They also learn how to keep paper calendars, speed-read large files full of papers, spot check papers, and carefully proof-read papers till they are perfect.

milton waddams

Some lawyers cover all of the furniture in their office with papers. A few even go so far as to put piles of paper on the floor creating an obstacle course to and from their desk, which is also entirely covered with papers. Papers make lawyers feel safe and secure. They provide status and prestige as a demonstration of productivity. They like to frame papers and put them on their walls. Some lawyers learn how to fax papers back and forth to each other. Some even learn how to email letters to each other and print out important ones to make them real.

Dunder Mifflin

Most judges and courts love paper too. Lawyers are required to serve papers on parties and opposing counsel, file papers with the court, and make paper trial exhibits. No witness exam is complete without marking papers, handing them to the clerk, opposing counsel, the judge, and then the witness. Some lawyers even blow up the special papers that they like to make them really, really big papers that everyone can easily see.

The trial lawyers are especially good with papers. They learn to chase paper trails, find tons of paper in other people’s filing cabinets, copy the paper, stamp the paper, produce the paper, and then explain the papers to a judge and jury. Some even learn advanced paper techniques such as Bates stamping papers to bring out their hidden order.

Lawyers live their entire life in a paper world. They start each day by reading a newspaper. When not doing paper work, they read paper books and magazines for fun. It is all paper, all the time, at work and at home. Lawyers are very adept at interpreting paper. They are the experts of paper forms. No paper is too lengthy or complex for them to figure out. Lawyers can and do stare at papers all day long

Just like the prisoners in Plato’s Cave, they do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.

Electric Lawyers

Almost all of the papers that lawyers love come from computers. There, in the electronic realm, they live in their full native glory.  There, and only there, is all of their information intact, their metadata, interconnectedness, and search-ability. None of this information ever makes it to the printer. The paper printouts are just two dimensional depictions of parts of the original ESI, in the same way that shadows are just two dimensional depictions of the original 3D objects. Papers are pale substitutes for the original electronic creations.

Just as the prisoners in Plato’s cave saw only the shadows of the people and things that happened to pass on the path behind them, so too the lawyers see only the papers that happened to have passed through a printer. They thereby miss most of the information world. In truth, only a very, very small percentage of information is ever printed out. In fact, almost all businesses records today only exist in electronic form and are never reduced to paper. The world of electronic information is far larger, more complex, interconnected, and beautiful than the paper lawyers could ever imagine.

Some lawyers manage to escape from their paper prisons, embrace the new world of electronically stored information, and sing the body electric. The transition from the paper shadows to full ESI is not easy. At first, most are overwhelmed by the sheer complexity and volume of the electronic source behind the paper shadows they knew so well. They are dazed and confused by the full magnitude of the information. It takes them time to grow acclimated to the new metadata they can now perceive. It takes them time to understand the interconnectedness of all digital information and grasp how it can be instantly searched and processed. But when they do, a whole new world of languages and skills opens up to them. Slowly they become masters of the electronic world that most of their clients take for granted. They learn to speak in new technical languages and start to understand how the world around them really operates. They stop printing out their emails and start using spreadsheets. They learn to hack and hash. They enter the Internet unafraid and rejoice in the near infinite webwork of html. They are reborn in cyberspace. They become electric lawyers.

matrix neo

Just as in Plato’s story, some of the electric lawyers feel compassion for their paper brothers. They decide  to return to the cave to try to practice law in the shadows again and share their new-found knowledge. At first, their eyes cannot adjust. They cannot remember all of the false distinctions made by those who do not grasp that paper is a mere printout of a larger reality. They speak in a language that the paper lawyers call techno-talk gibberish or computerese. They are not understood. Indeed, they are laughed at as nerds and geeks. When they first began to return in the early 1980s, the ones Ken Withers calls the protodigitals, the paper lawyers saw only their keyboards. In their darkness they understood them as typewriters and ridiculed the computer lawyers as secretaries.

The tales by electric lawyers of a vast new world of digital information, of better and faster, are misunderstood and ridiculed. The paper lawyers do not believe their wild stories of a so-called information explosion. They ignore the need to include requests for ESI in discovery. They reject the new hash stamps of digital information and stubbornly cling to their Bates stamps. The papers lawyers stick to the paper discovery. If they even bother to request email at all, they take the paper print-outs as if they alone were real. They do not understand metadata. It is invisible to them. So they refuse to produce it, whatever it is.

Just as in Plato’s story, the paper prisoners feel threatened by their electric brothers and sisters who speak a strange new language and live in a different world. They counter-attack in many ways. For instance, in the 1990s they persecuted electric lawyers who were the first to the Internet and accused them of broadcasting television ads without permission. One electric lawyer was even forced to submit his entire website to his state Bar association for approval as a television ad. His attempts to explain the world outside of the paper cave were futile. They saw the web show for themselves on the televisions sitting on their secretaries’ desks, which were actually computer monitors, but they did not understand the difference. The protodigital lawyer complied and printed out his whole website, disclaimers and all, consisting of thousands of pages of paper when so downgraded into two dimensions. Once the Bar governors saw the television add in the paper they loved and understood, they quibbled with a few terms, required a couple of revisions, and then approved his website, floridalawfirm.com, as a TV broadcast. The channel still remains, although the show has changed many times over the years.

Ostrich with Head in SandIn the Twenty First Century the paper lawyers continue to react as Plato predicted, albeit with more sophistication than before. They now spread rumors that electronic discovery is too expensive and will destroy our system of justice if not stopped. Other times they dismiss e-discovery as a mere fad that will pass. It is as if they really believed that people will soon abandon technology and return to the word of phone calls, ink, and parchment that they know and love. Flat screen computer monitors are starting to appear on cave walls everywhere, but they do not believe them. They live in denial.

When paper lawyers of today speak of computers at all, they speak only of computer viruses and threats to security. They attempt to clamp down on all employee computer use. They limit permissible software to ancient versions of Microsoft Office programs. They also try to make most of the Internet off-limits to all employees. They still pretend like only their clients’ paper records are real and only these papers contain information valuable for law suits. The only reason most clients have not left them years ago is that the senior in-house counsel are detached from the rest of the technologically sophisticated segments of the company. The senior in-house counsel are paper lawyers too and so they protect their own.

Ostrich head - careful, they bite

Some trial attorneys, with or without the permission of their clients, go so far as to enter into secret agreements with each other to ignore the alleged larger world outside the cave. They agree to look only at paper. Their often skeptical clients go along, intimidated by the rumors of runaway costs. Indeed, when paper lawyers dabble with ESI that they cannot ignore, they try to catch the fire through its shadows. That leads to mistakes, do overs, and wasteful expenses. It also often leads to sanctions and what appears to be unethical behavior. An ostrich can be mean when their head is removed from the sand against their will and they are forced to confront their own shadow.

Bray & Gillespie

A new order by Magistrate Judge Karla R. Spaulding illustrates this later point perfectly. Bray & Gillespie Management LLC v. Lexington Ins. Co. 2009 WL 2407754 (M.D.Fla. August 3, 2009). Severe sanctions were entered against the plaintiff and its lawyers for not producing hotel guest attendance records. The plaintiff’s paper lawyers only looked for these records in warehouses full of papers. When they found them in segments, they only made selective disclosures of what they found.  They were caught and sanctioned. The whole thing could have been avoided by simply producing the electronic guest records that were, of course, at all times readily available in the plaintiff’s computer system. They did not even try to look there, even though a native production was specifically requested and ordered by the court.

As an excuse plaintiff had a legal secretary for in-house counsel file an affidavit where she said it was impossible to download or export the data from their software, IQWare. She actually swore that the only way to get the information was to print it out onto paper. This is of course absurd, as a ten second search shows that their software is just a customized MS SQL database. It would have been easy to copy the database and turn it over, but the lawyers and their assistants only understood paper. As a result, they will now almost certainly lose the case. Judge Spaulding has entered a report and recommendation that plaintiff’s complaint be dismissed with prejudice and fees taxed against the plaintiff, now in bankruptcy, and its lawyers, not in bankruptcy, for their intentional, bad faith withholding of evidence and defiance of court orders requiring production of electronic evidence.

Some Electric Lawyers Stay and Some Go

Some electric lawyers grow frustrated with paper law and disputes like we see in Bray & Gillespie. They leave the cave and the practice of law entirely. They go to work for high-tech companies, e-discovery vendors, or become consultants, and the like. They devise ways to make ESI accessible to lawyers by making ESI seem like paper. They learn to convert electronic information to pseudo-paper images called TIFF and JPEG files. They keep most of the metadata in separate load files and try to convince the paper lawyers to use these image files instead of the paper print-outs. They enjoy some success and whole industries have been started devoted to the creation of a netherworld of image files between ESI and paper. Special software has been devised to allow the paper lawyers to review the electronic files on computers as if they were paper. This kind of TIFF review is expensive, but it allows paper lawyers many of the comforts of the cave. They can keep their familiar Bates stamp and can easily make print-outs of any image files they see for use at paper trials.

electric headOther electric lawyers refuse to leave their firms, they refuse to go solo or join the world of vendors and consultants. They love the law firm culture for the same reason that paper lawyers love paper. It is all they have ever known. They remain in the practice of law and learn to hide the light and play the shadow games. They go along with the vendors go-between world of electronic TIFF image files. They stop crusading about the wonders of full digital reality and thus escape the ire of their partners, but they never give up on trying to subtly persuade them. Some are successful. It is a slow process. More and more lawyers free themselves from their paper chains. The electric lawyers learn to sidestep the reactionary rules and deal directly with the clients who understand. They leave the cave as needed to maintain their sanity.  They find sanctuary in their homes, families, and friends that are entirely out-of-cave and in the light.

Some electric lawyers are no longer satisfied with the compromise solution of hot-shadow TIFFs. They insist that the paper lawyers leave the cave entirely and deal directly with the original native forms. The clients of the paper lawyers are also not satisfied because the nether world of image review is expensive and they are asked to pay the bills. Some of the judges are also becoming dissatisfied with such pretend paper discovery. Yes, many judges have also been able to find their way out of the cave and see the light of full ESI. Once they return, they no longer tolerate the paper lawyers’ pretenses. They grow weary of the mistakes, hide-the-metadata blunders, last minute discovery requests, and the many sanctions motions that happen whenever paper lawyers play with the fire of ESI.

Education by Changing Direction, Not Inserting Vision

Although many lawyers have now escaped, the vast majority of the legal profession still live in the cave. Most lawyers are not able to keep up with technology, they are unable to deal with the electronic evidence underlying most lawsuits. They cannot adequately preserve it, collect it, process it, search it, or present it. In short, they cannot conduct e-discovery or comply with the new rules of procedure governing e-discovery because they do not know how. They only know and understand paper discovery and paper evidence. They are blind to the dynamics of electronic information.

If Plato’s theories of education are correct, this knowledge cannot simply be transmitted to them. There is no lecture or CLE program brilliant enough to insert vision into those habituated by a lifetime of paper. The mind is not a tabula rasa to be written upon by subject matter experts, especially by the time a person is an adult. As Plato said, learning requires “turning the whole body.” Lawyers must leave the caves, stop staring at the paper shadows, and make a change of direction. Lawyers must enter cyberspace and become familiar with computers and software of all kinds.  Then, and only then, will learned lectures, over time, be effective.

seeing new worlds

The Socratic process of learning by changing direction and action has already begun. Many lawyers and paralegals today are ready to change and leave the cave. The message has gotten through and they know that paper is only a small part of reality. Most lawyers already have a computer on their desk and use email throughout the day. They are ready to escape the paper chains.

All that they need now is an effective education that facilities the process of a new direction. We cannot use paper to awaken people from a paper induced trance. By logic only a cyberspace approach to education will be effective. Our current brick and mortar approach to e-discovery education is conceptually flawed. Online education is the answer. As Marshall McLuhan said: “The medium is the message.”

Not just any online education of course. It has to be good, it has to be effective. For online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. It needs to be a high quality art form; in Plato’s words: “an art of the speediest and most effective shifting or conversion of the soul.” Of course, I do not mean anything religious by this, but I do mean a total transformation of perception, attitude, thinking, and action.

This new education will not come from law schools, they are tied up by paper bound professors. It will come from private companies that lead in technology. It needs to come soon, because society will not wait on the paper lawyers much longer.

Conclusion

Some of the protodigitals in all lines of work raised families and taught their children to read on computers, not paper. Unlike all of their friends who were raised by paper parents, they learned about the world by computers and other digital media. They grew up with computers around them at all times. These children of protodigitals are the postdigital generation. Some of these second generation nerds are starting to graduate from law schools now. (Postscript – see eg Losey.law by the author’s son)

Born into an all electric world, with electric parents, they have never known paper blinders. They see the shadows for the printouts that they are. They grew up using new software programs and computer games. They have blinding speed on the keyboard. Many now have an innate mastery of all software. If it plugs in, or has a battery, they understand it. The Internet is their playground. The information explosion and non-stop technology changes are their friends.

matrix kid bends spoon with his mind

That is all they have known their entire lives. They do not read the newspaper. They do not particularly like paper, they like pixels. The postdigitals write with paper as a novelty, the way their parents first used a computer.

Electronic discovery comes easy and natural to these second generation digitals. The protodigital lawyers, protodigital judges, and technology clients are their friends. The future of the law is in the hands of these postdigitals. They will serve the needs of the technology companies and people of today and tomorrow.

The only question now is whether the new education that the rest of the profession needs will come quickly enough. If not, the vast majority of the legal profession may be stuck in their caves while the world passes them by. They need help now to get out and be able to compete with the second generation digitals.

If not, there is likely to be a sudden shift in fortunes unlike the profession has ever seen before. The law firm rankings are likely to change rapidly and permanently over the next ten years. Moreover, once the winds of change become obvious, law firms of the future will be forced to put the paper dinosaurs out to pasture well before their prime. That will be the only way they can survive, the only way to try to regain their standing. Early retirement may become mandatory, especially for trial lawyers, as they are no longer able to understand what is really going on. The information in dispute may simply be beyond their ken.

Clarence Darrow and William Jennings Bryan

The postdigitals are not tied by bonds of affection to the prisoners left behind in the same way that the protodigitals are. The postdigitals will carry the profession forward into the light of new technology and information, with or without the paper prisoners. The businesses and public that the profession serves will see to that. So too will the protodigital lawyers and judges.

Without a new kind of education, those still bound in the caves by paper chains may simply be left behind. Even if they want to get out, and I think many now do, they may be unable to. Even if they get out, they may be unable to function effectively. They may be overwhelmed by the volume and complexity of it all. No matter what their age, the paper bound lawyers may become irrelevant before their time. They may simply fade away along with the newspapers they love.

That would be a shame, for they still have much to offer the future of our system of justice. I suspect that such a radical discontinuity would not be healthy. But, it may be inevitable. One way or another, radical change will come because the law must keep up with the society it serves.



The Importance of a 502(d) Order and Attorney Candor

October 27, 2019

I always suggest that attorneys ask for a 502(d) Order under Federal Rules of Evidence before production of ESI. A new case out of Texas demonstrates some of the many bad things that can happen if you do not. Bellamy v. Wal-Mart Stores, Texas, LLC, No. SA-18-CV-60-XR, 2019 WL 3936992 (W.D. Tex. Aug. 19, 2019). The opinion is from one of the leading e-discovery jurists in the country, Texas District Court Judge Xavier Rodriguez. Although he allowed the inadvertently produced documents to be clawed back, it was a close call. In the process Judge Rodriguez considered those documents and sanctioned defendants based on what he read. He struck defendant’s comparative negligence defense and awarded fees and costs. It could have been worse. The accidentally disclosed attorney emails suggested multiple rule violations and a disturbing lack of candor to the court.

This is a must read opinion, not only because of who wrote it, Judge Rodriguez, and the quality of his research and analysis, but also because of the facts of the case. There are many things we can learn from the mistakes highlighted in this opinion. Including the all important ethical values of attorney candor to the court and cooperation.

I will let the learned Judge Rodriguez’ own words in Bellamy explain this case, which was colored by the  attorney conduct he uncovered.

This is a slip and fall case. Plaintiff alleges that she . .  tripped over a pallet while walking through sliding doors into the garden center. . . .

There have been several discovery disputes that have arisen in this case. The Magistrate Judge presided over the first round of disputes and eventually ordered that the Plaintiff’s [First] Motion for Sanctions be dismissed without prejudice to allow for the deposition of a Wal-Mart employee who may have been responsible for leaving the pallet unattended. The Magistrate Judge further ordered that Defendant supplement its disclosures and discovery responses, amend its objections, and provide Plaintiff with a privilege log as to any withheld documents.

This latest round of disputes centers on what happened next. In responding to the Magistrate Judge’s Order, a paralegal in counsel for Defendant’s office inadvertently produced documents that Defendant claims are privileged under the attorney-client privilege or work product. Plaintiff responds that some documents are not privileged. With regard to documents that are privileged, Plaintiff argues that these documents nonetheless demonstrate that Defendant’s counsel has acted in bad faith and engaged in discovery abuse.

Id. at pg. 1 of 7.

Judge Rodriguez starts with an analysis of Evidence Rule 502.

This Court encourages parties to enter into a Rule 502(d) Order[1], which states: “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” FED. R. EVID. 502(d). Despite this Court’s encouragement, the Defendant did not request such an Order.[2] This was the first of many mistakes by Defendant’s counsel in this case. In the absence of a 502(d) Order, the Court then turns to an analysis under Rule 502(b).  . . .

In this case the privilege log was woefully deficient. Specifically, the Court is unable to ascertain the identities of various recipients of the emails in question.

Id. at pg 2 of 7.

The emails were all submitted to Judge Rodriguez for review in camera. The opinion makes clear that Judge Rodriguez did not think all of these emails were in fact privileged under case law, but plaintiff’s counsel had for some reason, not explained, conceded that they were.

But as stated above, because Plaintiff concedes that the documents are privileged, the Court will not disturb the concession that the documents are covered by the attorney-client privilege.

Id.

The elements of Rule 502(b) were met with this odd concession, so Judge Rodriguez had no choice but to order their return and prevent plaintiff from using the emails at trial, but Judge Rodriguez was not at all happy about the contents of the emails. This is where the hammer falls:

*3 Accordingly, pursuant to Fed. R. Evid. 502(b) and Fed. R. Civ. P. 26(b)(5)(B), Defendant is entitled to “claw back” the documents it inadvertently produced. But that is not the end of this analysis. Although Plaintiff may not further use these documents in this case, preventing their use in analyzing the pending motion for sanctions would result in a perverse result, upending the rules of civil procedure and encouraging discovery abuse.

Id.

Judge Rodriguez starts by noting defense counsel became aware of key witnesses and failed to disclose them.

With regard to the above individuals, Defendant failed to list them in its Fed. R. Civ. P. 26(a)(1) initial disclosures and failed to timely list them in answers to interrogatories. It is apparent from a reading of the materials submitted either Defendant’s counsel was grossly negligent in fulfilling their discovery obligations or they realized they had an uncooperative manager who was refusing to assist in their investigation, and they did not want to disclose the identities of potentially “bad” witnesses. Counsel for Defendant attempts to shift some of this blame by stating that Plaintiff was already aware of the manager and garden center employee because of her prior employment with Wal-Mart. This shifting is unpersuasive. Defendant’s counsel had obligations to provide this information and it unreasonably and untimely did not.

Id. at pg. 3 of 7.

The in camera privileged emails Judge Rodriguez read also showed that a video of the slip and fall once existed. Yikes. That is a real problem.

Counsel for Defendant never disclosed to Plaintiff’s counsel that at one time video may have existed that was now lost. Rather, counsel merely kept repeating that video does not exist.

Id.

That was way too cute. Disclosure to opposing counsel and the court was expected by Judge Rodriguez.

If that were not all bad enough, the emails revealed another hidden fact:

Finally, Plaintiff’s counsel discovered in the inadvertently produced emails that: (9) Defendant hired an
investigator to conduct a full social media/background check on the Plaintiff on June 20, 2018; and (10)
outside counsel for Defendant notified “Travis Rodmon-Legal” that surveillance had been completed on the Plaintiff and “it is debatable if the footage will be beneficial…. The investigator informs me that she moves very slowly, gingerly and hobbles a bit.”

*4 Counsel for Defendant never disclosed that it possessed video of the Plaintiff. Defendant was under an obligation to disclose any such video as a request for production had been made to that effect. Likewise, Wal-Mart had obtained numerous statements from the Plaintiff prior to her obtaining representation. These statements were requested in requests for production, but not timely disclosed. Counsel for Defendant attributes this failure to the fact that one attorney working this file left the firm and the file was reassigned and the new attorney was unaware of the video’s existence. Although this suggests no “bad faith”, at the time Wal-Mart sent its responses to requests for production and stated that it had no video of the Plaintiff it violated Rule 26(g).

Plaintiff requests that Defendant be sanctioned for failing to disclose that store surveillance video at one point existed and at some point became “lost.” Plaintiff also seeks sanctions because the Wal-Mart manager testified at her deposition that she took multiple photos (including of the pallet) and these photos have never been produced. Likewise, the manager testified that she obtained a statement from the employee who left the pallet unattended and that statement has never been produced. Plaintiff also seeks sanctions because Wal-Mart did not preserve the pallet in question. Finally, Plaintiff requests sanctions generally for Defendant’s failure to honor its discovery obligations. Plaintiff also requests that the Court provide an adverse inference instruction to the jury regarding the missing information. Plaintiff seeks these various sanctions citing generally to Fed. R. Civ. P. 37 and the court’s “inherent
authority.”

Id.

Judge Rodriguez examines the law on sanctions and then considers the ethical Duty of Candor to the Court (Rule 3.3, Model Rules of Professional Conduct) the Duty of Cooperation and Rule 1, FRCP (just, speedy and inexpensive).

D. Duty of Candor, Cooperation and FED. R. CIV. P. 1

Counsel for Defendant wisely opened its Response brief with the following: “Defendant’s counsel
acknowledges and accepts it made mistakes during the discovery of this matter. It accepts that consequences may come from the Court as it considers Plaintiff’s Motions before the Court.”

It is apparent that at the time of the accident, Defendant considered this a low-value or nuisance case. It did not contemplate the severity of the Plaintiff’s injuries and medical treatment. But once Plaintiff placed Defendant on notice that she was going to pursue litigation, reasonable and proportionate preservation obligations were required to be met. Likewise, defense counsel may be on billing constraints, but discovery obligations and adherence to the rules of civil procedure must be met.

*7 Federal Rules of Civil Procedure 1 and 26(f) contemplate that the parties meet in good faith to discuss the case and facilitate resolution of the case and discovery issues because the parties have an obligation “to secure the just, speedy, and inexpensive determination of every action.” Rather than complying with the rules, defense counsel delayed the production of adverse material and the identity of witnesses and the extent of the inappropriate acts only fully became revealed after an inadvertent production of emails was made (after intervention by the Magistrate Judge).

Id. at pgs. 5-6 of 7.

Judge Rodriguez then concludes:

A reading of the file in this case makes apparent that Wal-Mart has known early on that it is responsible for the pallet being left unattended for some period of time in an area frequented by customers. Many counsel for defendants argue that the burden is on a plaintiff to establish all elements of their causes of action. That is true. But if that is going to be the Defendant’s strategy (even when knowing they will likely suffer defeat), this Court is not sympathetic to complaints that litigation is too expensive. In this case, rather than focusing on the extent of Plaintiff’s damages, Wal-Mart has now expended significant time and fees on the liability issue its own claims investigator conceded a long time ago.

Conclusion

Defendant’s Motion to Abate or Strike Plaintiff’s Second Motion for Sanctions (docket no. 49) is DENIED, but as stated above Plaintiff may not use the inadvertently produced documents for any other purpose and counsel must return any documents still in Plaintiff’s possession, if any, to Defendant. Plaintiffs’ Motion for Sanctions (docket no. 50) is GRANTED as stated above. Defendant may not assert any comparative negligence defense in this case, including arguing that the danger was open and obvious.

Id. at pgs. 6-7 of 7.

 


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