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.

 


Cautionary Tale from Brooklyn: Search Terms ‘Designed To Fail’

October 20, 2019

Every lawyer who thinks e-discovery is not important, that you can just delegate it to a vendor, should read Abbott Laboratories, et al. v. Adelphia Supply USA, et al., No. 15 CV 5826 (CBA) (LB) (E.D.N.Y. May 2, 2019). This opinion in a trademark case in Brooklyn District Court (shown here) emphasizes, once again, that e-discovery can be outcome-determinative. If you mess it up, you can doom your case. If a lawyer wants to litigate today, they either have to spend the substantial time it takes to learn the many intricacies of e-discovery, or associate with a specialist who does. The Abbott Labs case shows how easily a law suit can be won or lost on e-discovery alone. Here the numbers did not add up, key custodians were omitted and guessed keywords were used, keywords so bad that opposing counsel called them designed to fail. The defendants reacted by firing their lawyers and blaming everything on them, but the court did not buy it. Instead, discovery fraud was found and judgment was entered for the plaintiff.

Magistrate Judge Lois Bloom (shown right) begins the Opinion by noting that the plaintiff’s motion for case ending sanctions “… presents a cautionary tale about how not to conduct discovery in federal court.” The issues started when defendant made its first electronic document production. The Electronically Stored Information was all produced in paper, as Judge Bloom explained “in hard copy, scanning them all together, and producing them as a single, 1941-page PDF file.” Opinion pg. 3. This is not what the plaintiff Abbott Labs wanted. After Abbott sought relief from the court the defendants on March 24, 2017 were ordered  to “produce an electronic copy of the 2014 emails (1,941 pages)” including metadata. Defendant then “electronically produced 4,074 pages of responsive documents on April 5, 2017.” Note how the page count went from 1,942 to 4,074. There was no explanation of this page count discrepancy, the first of many, but the evidence helped Abbott justify a new product counterfeiting action (Abbott II) where the court ordered a seizure of defendant’s email server. That’s were the fun started. As Judge Bloom put it:

Once plaintiffs had seized H&H’s email server, plaintiffs had the proverbial smoking gun and raised its concerns anew that defendants had failed to comply with the Court’s Order to produce responsive documents in the instant action (hereinafter “Abbott I”). On July 12, 2017, the Court ordered the H&H defendants to “re-run the document search outlined in the Court’s January 17 and January 21 Orders,” “produce the documents from the re-run search to Abbott,” and to produce “an affidavit of someone with personal knowledge” regarding alleged technical errors that affected the production.³ Pursuant to the Court’s July 12, 2017 Order to re-run the search, The H&H defendants produced 3,569 responsive documents.

Opinion pg. 4 (citations to record omitted).

Too Late For Vendor Help and a Search Strategy Designed to Fail

After the seizure order in Abbott II, and after Abbott Labs again raised issues regarding defendants’ original production, Judge Bloom ordered the defendants to re-run the original search. Defendants then retained the services of an outside vendor, Transperfect, to re-run the original search for them. In supposed compliance with that order, the defendants, aka H&H, then produced 3,569 documents. Id. at 8. Defendants also filed an affidavit by Joseph Pochron, Director in the Forensic Technology and Consulting Division at Transperfect (“Pochron Decl.”) to try to help their case. It did not work. According to Judge Bloom the Pochron Decl. states:

… that H&H utilized an email archiving system called Barracuda and that there are two types of Barracuda accounts, Administrator and Auditor. Pochron Decl. ¶ 13. Pochron’s declaration states that the H&H employee who ran the original search, Andrew Sweet, H&H’s general manager, used the Auditor account to run the original search (“Sweet search”). Id. at ¶ 19. When Mr. Pochron replicated the Sweet search using the Auditor account, he obtained 1,540 responsive emails. Id. at ¶ 22. When Mr. Pochron replicated the Sweet search using the Administrator account, he obtained 1,737 responsive emails. Id. Thus, Mr. Pochron attests that 197 messages were not viewable to Mr. Sweet when the original production was made. Id. Plaintiffs state that they have excluded those 197 messages, deemed technical errors, from their instant motion for sanctions. Plaintiffs’ Memorandum of Law at 9; Waters Decl. ¶ 8. However, even when those 197 messages are excluded, defendants’ numbers do not add up. In fact, H&H has repeatedly given plaintiffs and the Court different numbers that do not add up.

Moreover, plaintiffs argue that the H&H defendants purposely used search terms designed to fail, such as “International” and “FreeStyle,” whereas H&H’s internal systems used item numbers and other abbreviations such as “INT” and “INTE” for International and “FRL” and “FSL” for FreeStyle. Plaintiff’s Memorandum of Law at 10–11. Plaintiffs posit that defendants purposely designed and ran the “extremely limited search” which they knew would fail to capture responsive documents …

Opinion pgs. 8-9 (emphasis by bold added). “Search terms designed to fail.” This is the first time I have ever seen such a phrase in a judicial opinion. Is purposefully stupid keyword search yet another bad faith litigation tactic by unscrupulous attorneys and litigants? Or is this just another example of dangerous incompetence? Judge Bloom was not buying the ‘big oops” theory, especially considering the ever-changing numbers of relevant documents found. It looked to her, and me too, that this search strategy was intentionally design to fail, that it was all a shell-game.

This is the wake-up call for all litigators, especially those who do not specialize in e-discovery. Your search strategy had better make sense. Search terms must be designed (and tested) to succeed, not fail! This is not just incompetence.

The Thin Line Between Gross Negligence and Bad Faith

The e-discovery searches you run are important. The “mistakes” made here led to a default judgment. That is the way it is in federal court today. If you think otherwise, that e-discovery is not that important, that you can just hire a vendor and throw stupid keywords at it, then your head is dangerously stuck in the sand. Look around. There are many cases like Abbott Laboratories, et al. v. Adelphia Supply USA.

I say “mistakes” made here in quotes because it was obvious to Judge Bloom that these were not mistakes at all, this was fraud on the court.

E-Discovery is about evidence. About truth. You cannot play games. Either take it seriously and do it right, do it ethically, do it competently; or go home and get out. Retire already. Discovery gamesmanship and lawyer bumbling are no longer tolerated in federal court. The legal profession has no room for dinosaurs like that.

Abbott Labs responded the way they should, the way you should always expect in a situation like this:

Plaintiffs move for case ending sanctions under Federal Rule of Civil Procedure 37 and invoke the Court’s inherent power to hold defendants in default for perpetrating a fraud upon the Court. Plaintiffs move to strike the H&H defendants’ pleadings, to enter a default judgment against them, and for an order directing defendants to pay plaintiffs’ attorney’s fees and costs, for investigating and litigating defendants’ discovery fraud.

Id.

Rule 37(e) was revised in 2015 to make clear that gross negligence alone does not justify a case-ending sanction, that you must prove bad faith. This change should not provide the incompetent with much comfort. As this case shows, the difference between mistake and intent can be a very thin line. Do your numbers add up? Can you explain what you did and why you did it? Did you use good search terms? Did you search all of the key custodians? Or did you just take the ESI the client handed to you and say thank you very much? Did you look with a blind eye? Even if bad faith under Rule 37 is not proven, the court may still find the whole process stinks of fraud and use the court’s inherent powers to sanction misconduct.

As Judge Bloom went on to explain:

Under Rule 37, plaintiffs’ request for sanctions would be limited to my January 17, 2017 and January 27, 2017 Orders which directed defendants to produce documents as set forth therein. While sanctions under Rule 37 would be proper under these circumstances, defendants’ misconduct herein is more egregious and goes well beyond defendants’ failure to comply with the Court’s January 2017 discovery orders. . . .  Rather than viewing the H&H defendants’ failure to comply with the Court’s January 2017 Orders in isolation, plaintiffs’ motion is more properly considered in the context of the Court’s broader inherent power, because such power “extends to a full range of litigation abuses,” most importantly, to fraud upon the court.

Opinion pg. 5.

Judge Bloom went on the explain further the “fraud on the court” and defendant’s e-discovery conduct.

A fraud upon the court occurs where it is established by clear and convincing evidence “that a party has set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by . . . unfairly hampering the presentation of the opposing party’s claim or defense.” New York Credit & Fin. Mgmt. Grp. v. Parson Ctr. Pharmacy, Inc., 432 Fed. Appx. 25 (2d Cir. 2011) (summary order) (quoting Scholastic, Inc. v. Stouffer, 221 F. Supp. 2d 425, 439 (S.D.N.Y. 2002))

Opinion pgs. 5-6 (subsequent string cites omitted).

Kill All The Lawyers

The defendants here tried to defend by firing and blaming their lawyers. That kind of Shakespearean sentiment is what you should expect when you represent people like that. They will turn on you. They will use you for their nefarious ends, then lose you. Kill you if they could.

Judge Bloom, who was herself a lawyer before becoming a judge, explained the blame-game defendants tried to pull in her court.

Regarding plaintiffs’ assertion that defendants designed and used search terms to fail, defendants proffer that their former counsel, Mr. Yert, formulated and directed the use of the search terms. Id. at 15. The H&H defendants state that “any problems with the search terms was the result of H&H’s good faith reliance on counsel who . . . decided to use parameters that were less robust than those later used[.]” Id. at 18. The H&H defendants further state that the Sweet search results were limited because of Mr. Yert’s incompetence. Id.

Opinion pg. 9.

Specifically defendants alleged:

… the original search parameters were determined by Mr. Yert and that he “relied on Mr. Yert’s expertise as counsel to direct the parameters and methods for a proper search that would fulfill the Court’s Order.” Sweet Decl. ¶ 3–4.  As will be discussed below, the crux of defendants’ arguments throughout their opposition to the instant motion seeks to lay blame on Mr. Yert for their actions; however, defendants cannot absolve themselves of liability here by shifting blame to their former counsel.

Opinion pg. 11.

Here is how Judge Bloom responded to this “blame the lawyers” defense:

Defendants’ attempt to lay blame on former counsel regarding the design and use of search terms is equally unavailing. It is undisputed that numerous responsive documents were not produced by the H&H defendants that should have been produced. Defendants’ prior counsel conceded as much. See generally plaintiffs’ Ex. B, Tr. Of July 11, 2017 telephone conference.

Mr. Yert was asked at his deposition about the terms that H&H used to identify their products and he testified as follows:

Q. Tell me about the general discussions you had with the client in terms of what informed you what search terms you should be using.

A. Those were the terms consistently used by H&H to identify the particular product.

Q. So the client told you that FreeStyle and International are the terms they consistently used to refer to International FreeStyle test strips; is that correct?

A. That’s what I recall.

Q. Did the client tell you that they used the abbreviation FSL to refer to FreeStyle?

A. I don’t recall.

Q. If they had told you that, you would have included that as a search term, correct?

A. I don’t recall if it was or was not included as a search term, sir.

Opinion pgs. 10-11.

The next time you are asked to dream up keywords for searches to find your client’s relevant evidence, remember this case, remember this deposition. Do not simply use keywords that the client suggests, as the attorneys did here. Do not simply use keywords. As I have written here many, many times before, there is a lot more to electronic evidence search and review than keywords. This is the Twenty First Century. You should be using AI, specifically active machine learning, aka Predictive Coding.

You need an expert to help you and you need them at the start of a case, not after sanctions motions.

Judge Lois Bloom went on to explain that, even if defendant’s story of innocent reliance on it lawyers was true:

It has long been held that a client-principal is “bound by the acts of his lawyer agent.” Id. (quoting Link v. Wabash RR. Co., 370 U.S. 626, 634 (1962)). As the Second Circuit stated, “even innocent clients may not benefit from the fraud of their attorney.” Id. . . .

However, notwithstanding defendants’ assertion that the search terms “FreeStyle” and “International” were used in lieu of more comprehensive search terms at the behest of Mr. Yert, it is undisputed that Mr. Sweet, H&H’s general manager, knew that H&H used abbreviations for these terms. Mr. Sweet admitted this at his deposition. See Sweet Dep. 81:2-81:24, Mar. 13, 2018. . . . The Court need not speculate as to why defendants did not use these search terms to comply with defendants’ obligation to produce pursuant to the Court’s Order. Mr. Sweet, by his own admission, states that “on several occasions he contacted Mr. Yert with specific questions about whether to include certain emails in production.” Sweet Decl. ¶ 7. It is inconceivable that H&H’s General Manager, who worked closely with Mr. Yert to respond to the Court’s Order, never mentioned that spelling out the terms used, “International” and “FreeStyle”, would not capture the documents in H&H’s email system. Mr. Sweet knew that H&H was required to produce documents regarding International FreeStyle test strips, regardless of whether H&H’s documents spelled out or abbreviated the terms. Had plaintiffs not seized H&H’s email server in the counterfeiting action, plaintiffs would have never known that defendants failed to produce a trove of responsive documents. H&H would have gotten away with it.

Opinion pgs. 12-13.

Defendants also failed to produce any documents by three custodians Holland Trading, Howard Goldman, and Lori Goldman. Again, they tried to blame that omission on their attorney, who they claim directed the search. Oh yeah, for sure. To me he looks like a mere stooge, a tool of unscrupulous litigants. Judge Bloom did not accept that defense either, holding:

While defendants’ effort to shift blame to Mr. Yert is unconvincing at best, even if defendants’ effort could be credited, counsel’s actions, even if they were found to be negligent, would not shield the H&H defendants from responsibility for their bad faith conduct.

Opinion pgs. 19-20. Then Judge Bloom went on to cite the record at length, including the depositions and affidavits of the attorneys involved, to expose this blame game as a sham. The order then concludes on this point holding:

There is no credible explanation for why the Holland Trading, Howard Goldman, and Lori Goldman documents were not produced except that the documents were willfully withheld. Defendants’ explanation that there were no documents withheld, then that any documents that weren’t produced were due to technical glitches, then that the documents didn’t appear in Mr. Sweet’s original search, then that if documents were intentionally removed, they were removed per Mr. Yert’s instructions cannot all be true. The H&H defendants have always had one more excuse up their sleeve in this “series of episodes of nonfeasance,” which amounts to “deliberate tactical intransigence.” Cine, 602 F.2d at 1067. In light of the H&H defendants’ ever-changing explanations as to the withheld documents, Mr. Sweet’s inconsistent testimony, and assertions of former counsel, the Court finds that the H&H defendants have calculatedly attempted to manipulate the judicial process. See Penthouse, 663 F.2d 376–390 (affirming entry of default where plaintiffs disobeyed an “order to produce in full all of [their] financial statements,” engaged in “prolonged and vexatious obstruction of discovery with respect to closely related and highly relevant records,” and gave “false testimony and representations that [financial records] did not exist.”).

Opinion pgs. 22-23.

The plaintiff, Abbott Labs, went on to argue that “the withheld documents freed David Gulas to commit perjury at his deposition. The Court agrees.” Id. at 24. The Truth has a way of finding itself out, especially with competent counsel on the other side and a good judge.

With this evidence the Court concluded the only adequate sanction was a default judgment in plaintiff’s favor. Message to spoliating defendants, game over, you lose.

Based on the full record of the case, there is clear and convincing evidence that defendants have perpetrated a fraud upon the court. Defendants’ initial conduct of formulating search terms designed to fail in deliberate disregard of the lawful orders of the Court allowed H&H to purposely withhold responsive documents, including the Holland Trading, Howard Goldman, and Lori Goldman documents. Defendants proffered inconsistent positions with three successive counsel as to why the documents were withheld. Mr. Sweet’s testimony is clearly inconsistent if not perjured from his deposition to his declaration in opposition to the instant motion. Mr. Goldman’s deposition testimony is evasive and self-serving at best. Finally, Mr. Gulas’ deposition testimony is clearly perjured. Had plaintiffs never seized H&H’s server pursuant to the Court’s Order in the counterfeiting case, H&H would have gotten away with their fraud upon this Court. H&H only complied with the Court’s orders and their discovery obligations when their backs were against the wall. Their email server had been seized. There was no longer an escape from responsibility for their bad faith conduct. This is, again, similar to Cerruti, where the “defendants did not withdraw the [false] documents on their own. Rather, they waited until the falsity of the documents had been detected.” Cerruti.,169 F.R.D. at 583. But for being caught in a web of irrefutable evidence, H&H would have profited from their misconduct. . . .

The Court finds that the H&H defendants have committed a fraud upon the court, and that the harshest sanction is warranted. Therefore, plaintiffs’ motion for sanctions should be granted and a default judgment should be entered against H&H Wholesale Services, Inc., Howard Goldman, and Lori Goldman.

Conclusion

Attorneys of record sign responses under Rule 26(g) to requests for production, not the client. That is because the rules require them to control the discovery efforts of their clients. That means the attorney’s neck is on the line. Rule 26(g) does not allow you to just take a client’s word for it. Verify. Supervise. The numbers should add up. The search terms, if used, should be designed and tested to succeed, not fail. This is your response, not the client’s. You determine the search method, in consultation with the client for sure, but not by “just following orders.” You must see everything, not nothing. If you see no email from key custodians, dig deeper and ask why. Do this at the beginning of the case. Get vendor help before you start discovery, not after you fail. Apparently the original defense attorneys here did just what they were asked, they went along with the client. Look where it got them. Fired and deposed. Default judgment entered. Cautionary tale indeed.

 

 


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