Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two” – Part Two

January 22, 2017

This is the second and concluding section to the two-part blog, Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two.” Click here to read Part One.

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Next consider Judge Haight’s closing words to the opinion dated December 22, 2016, Ruling On Plaintiff’s Motion To Compel; Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH):

However, requiring this additional production, or a further deposition in case of need, is in keeping with a governing objective of the Federal Rules of Civil Procedure: “By requiring disclosure of all relevant information, the discovery rules allow ultimate resolution of disputed issues to be based on full and accurate understanding of true facts.” 6 Moore’s Federal Practice § 26.02 (Matthew Bender 3d ed.). 6

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6 While Yale may not welcome the measurement of its obligations in the case at bar by these principles, it is worth recalling that the treatise’s principal initial author, James Wm. Moore, was a towering figure on the faculty of Yale Law School. In his preface to the first edition (1938), Professor Moore referred to his effort “at all times to accord to the Rules the interpretation which is most likely to attain the general objective of the new practice: the settlement of litigation on the merits.” That is the interpretation this Ruling attempts to adopt.

william_moore_prof_yale

Prof. Moore (1905-1994)

Poor Yale. Moore’s Federal Practice is one of the most cited treatises in the law. James W. Moore was the author of the 34-volume Moore’s Federal Practice (2d ed., 1948) and the three-volume Moore’s Manual: Federal Practice & Procedure (1962). He was also the Sterling Professor Emeritus of Law at Yale University, where he taught for 37 years. Who else but Yale can have anything in Moore’s thirty-four volume treatise held against them personally? Seems kind of funny, but I am sure Yale’s attorneys were not laughing.

Getting back to the case and Judge Haight’s decision. Aside from showing the malleability and limits of reason, Bagley Two provides some important new precedent for e-discovery, namely his rulings on privilege and the discoverability of a party’s preservation efforts. Judge Haight starts by repeating what is now established law, that a party’s preservation efforts are not satisfied by mere issuance of a notice, that a whole process is involved and the process must be reasonable. He then goes on to provide a pretty good list of the facts and circumstances that should be considered to determine reasonability.

[A] party’s issuance of a litigation hold notice does not put an end to the party’s obligation to preserve evidence; it is, rather, the first in a series of related steps necessary to ensure that preservation. As Magistrate Judge Francis aptly observed in Mastr Adjustable Rate Mortgages Trust 2006 v. UBS Real Estate Securities Inc., 295 F.R.D. 77, 85 (S.D.N.Y. 2013): “A litigation hold is not, alone, sufficient; instead compliance must be monitored.”

In spoliation cases involving litigation hold notices, one can discern from Second Circuit and district court opinions a number of decisive questions:

1. When did a party’s duty to preserve evidence arise?
2. Did the party issue a litigation hold notice in order to preserve evidence?
3. When did the party issue a litigation hold notice, in relation to the date its duty to preserve the evidence arose?
4. What did the litigation hold notice say?
5. What did recipients of the litigation hold notice do or say, in response to or as result of, the notice?
6. After receiving recipients’ responses to the litigation hold notice, what further action, if any, did the party giving the notice take to preserve the evidence?

Questions 2 through 6 are entirely fact-specific to a given case. Question 1 is a mixed question of law and fact, whose legal element the Second Circuit defined in Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001): “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

In the case at bar, I am unable to accept Yale’s argument that the litigation hold notices it issued about Bagley and the recipients’ responses to the notices are immune from discovery because (in the absence of proof that spoliation had in fact occurred) such documents “are subject to the attorney-client and to work product privileges,” Defendants’ Brief [Doc. 192], at 3. That contention is something of a stretch. … . Assuming that all of Clune’s litigation hold notices were sent to employees of Yale, Clune was in effect communicating with his client. However, the predominant purpose of that communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do. 3

I like the list of six key facts to consider to weigh the reasonability of preservation efforts, especially the last one. But my primary point here is the malleability of reason in classifying the notice as unprotected. A letter from in-house counsel telling employees that the law requires them to preserve is not advice entitled to privilege protection? It’s predominant purpose was instead unprotected instructions? The language of the litigation hold notices was earlier quoted in the opinion. It’s language included the following:

[A]ll members of the Yale faculty and staff who have information in their possession or control relating or referring in any way to Professor Bagley, her employment and teaching at SOM, or the circumstances relating to the non-renewal of her faculty appointment (collectively “this Matter”) have a legal obligation to preserve that information. The law imposes this obligation to prevent the loss of potential evidence during litigation. You must preserve and retain, and not alter, delete, remove, discard or destroy, directly or indirectly, any information concerning this Matter. Failure to preserve information could seriously undermine Yale’s legal position and lead to legal sanctions.

The lawyer’s letter tells employees that they “have a legal obligation to preserve,” and the legal consequences if they do not. Yet this letter is not advice because the predominant purpose is just an unprotected instruction? That is the holding.

mental_impressionsJudge Haight gets rid of work product protection too.

As for the work product doctrine, it “is not actually a privilege, but rather a qualified immunity from discovery,” codified in Fed. R. Civ. P. Rule 26(b)(3), whose purpose “is to protect an attorney’s mental processes so that the attorney can analyze and prepare for the client’s case without interference from an opponent.” 6 Moore’s Federal Practice, § 26.70[1] (Matthew Bender 3d ed.). 4 That purpose is not implicated by the present exercise.

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4 Fed. R. Civ. P. 26 (b)(3) of Civil Procedure protects from disclosure those materials which reveal “the mental impressions, conclusions, opinions, or legal theories of a party’s attorney.” See also In re Steinhardt Partners, L.P., 9 F.3d 230, 234 (2d Cir. 1993) (“At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.”) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)) (emphasis added).

I do not agree with Judge Haight on this aspect of his ruling. I think both work product and attorney client apply to these particular notices and his “reasoning”on this issue is wrong. I do, however, agree with his final ruling requiring production. I think the protections had been waived by the circumstances and actions of defense counsel, which, by the way, they were correct in doing. I think the waiver on their part was necessary. Judge Haight also mentioned waiver, but as dicta alternative grounds in footnote three:

3 The Court also notes that to the extent that Yale’s litigation hold notices included the text of the exemplar provided to Plaintiff as “document preservation notices,” that text has already been revealed publicly in this case, so that secrecy or privilege relating to that language was destroyed or waived. See Doc. 191-1, Ex. F.

triggerJudge Haight then looks at the question of when Yale’s duty to preserve commenced. Recall Yale kept adding custodians in eight stages. The first were pre-litigation notices. They were made, I note, after Yale’s lawyer mental processes told him that litigation was reasonably likely. The last were made after suit was filed, again based on the lawyer’s mental processes causing him to believe that these additional witnesses might have relevant evidence. The mental processes of Plaintiff’s attorneys led them to believe that all of the notices, including the pre-litigation notices, were sent too late and thus spoliation was likely. Here is Judge Haight’s analysis of the trigger issue:

When, during the course of this melancholy chain of events, should Yale have known that evidence pertinent to Bagley’s reappointment might be relevant to future litigation? That is a crucial question in spoliation analysis. A state of reasonable anticipation clearly antedates the actual filing of a complaint; in Fujitsu, 247 F.3d at 436, the Second Circuit was careful to couple actual present and possible future litigation as catalysts of equal strength for the preservation of evidence.

Bagley has not yet formally moved for spoliation sanctions, and so the question is not yet before me for decision, but some preliminary, non-binding observations may be made. The record previously made in the case shows that Bagley’s personal distress and institutional disapproval and distrust grew throughout the winter and spring of 2012 (the last year of her five-year appointment), so that when on May 24, 2012, Dean Snyder told Bagley that she would not be reappointed, it would not be irrational to suppose that Bagley might soon transform herself from disheartened academic to vengeful litigant. In fact, Bagley filed an internal discrimination complaint against Yale during the following month of June 2012 (which had the effect of bringing Provost Salovey out of the wings and onto the stage).

Predictable_IrrationalNote the Judge’s use of the phrase not be irrational to suppose. What is the impact of hindsight bias on this supposedly objective, rational analysis? Bagley’s later actions made it obvious that she would sue. She did sue. The law suit has been very contentious. But was it really all that obvious back in 2012 that Yale would end up in the federal courthouse? I personally doubt it, but, admit it is a close judgment call. We lawyers say that a lot. All that phrase really means is that reason is not objective. It is in the eye of the beholder.

Judge Haight then wraps up his analysis in Bagley Two.

What happened in this case is that Yale identified 65 individuals who might have evidence relevant to Bagley’s denial of reappointment, and issued them litigation hold notices in eight separate batches, a process that took a considerable amount of time. The first nine notices were sent nine months after Snyder told Bagley she would not be reappointed. The last was sent eight months after Bagley filed this action. To characterize the pace of this notification process as culpable or even negligent would be premature on the present record, but it is fair to say that it was leisurely, to an extent making it impossible to dismiss as frivolous Bagley’s suggestion that she might move for a spoliation sanction. The six questions outlined supra arise in this case, and the factors pertinent to resolving them include an unreasonable delay in issuing the notices and a subsequent failure to implement and monitor the recipients’ responses. Judge Sweet said in Stimson that the Second Circuit has left open “the question of whether a sufficiently indefensible failure to issue a litigation hold could justify an adverse inference on its own,” and an additional factor would be “the failure to properly implement the litigation hold even after it was issued.” 2016 WL 54684, at *6. These are legitimate questions in the case at bar. Bagley is entitled to discovery with respect to them. 5 (footnote citations omitted)

I certainly agree with Judge Haight on all of those points and law. Those factual circumstances do justify the modest amount of discovery requested by the plaintiff in this motion.

gavelNow we get to the actual Order on the pending motion to compel:

Therefore I conclude that in the circumstances of this case, Bagley’s “Motion to Compel” [Doc. 190] is GRANTED. Bagley is entitled to examine the litigation hold notices issued by Yale, and the responsive survey forms that notice recipients returned to Yale. These documents bear directly upon the questions courts identify as dispositive in spoliation cases. Bagley is entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim. To the extent that Yale objects to production of these documents on the grounds of privilege or the work product doctrine, the objections are OVERRULED.

For the same reasons, Bagley is also entitled to an affidavit from a Yale officer or employee (not a notice recipient or recipients) which describes what non-ESI documents Yale received from notice recipients and what was done with them. On a spoliation claim, Bagley will ultimately bear the burden of showing that pertinent evidence was destroyed or rendered unavailable. This discovery may cast light on that disputed issue. Yale may prefer not to have to produce that information; Yale’s counsel miss no opportunity to remind the Court how much discovery effort the case has previously required.

Judge Haight then ended his opinion with the previously quoted zinger regarding Yale’s famous law Professor Moore. This zinger and comments about Yale’s leisurely efforts and Yale counsel’s missing no opportunities to remind the court tell a story of their own. It shows the emotional undertone. So too does his earlier noted comment about “spoliation” being a cardinal litigation vice, well known to practicing attorneys and judges, but “perhaps unfamiliar” to academics. I suspect this goes beyond humor.

Artificial Intelligence and the Future of Employment

robot_whispererI am sure legal reason will improve in the future and become less subjective, less subject to hidden irrationalities and prejudices. By using artificial intelligence our legal doctrines and decision making can be improved, but only if the human judges remain in charge. The same comment goes for all attorneys. In fact, it applies to all current employment.

The doom and gloom futurists disagree. They think AI will replace humans at their jobs, not empower them. They envision a future of cold automation, not man-machine augmentation. They predict wide-spread unemployment with a loss of half of our current employment. An University of Oxford study predicted that almost half of all U.S. jobs could be lost to automation in the next twenty years. Even the influential World Economic Forum predicts predicts that Five Million jobs could be lost by 2020. Five Million Jobs by 2020: the Real Challenge of the Fourth Industrial Revolution. Also seeThe Future of Jobs: Employment, Skills and Workforce Strategy for the Fourth Industrial Revolution (World Economic Forum, Jan. 2016).

A contrary view “augmentation” oriented group predicts the opposite, that at least as many new jobs will be created as lost. This is a subject of hot debate. See EgArtificial intelligence will save jobs, not destroy them (World Economic Forum, 1/19/17). Readers know I am in the half-full camp.

James Bessen: Law Prophet of the Future of Employment

james_bessonMany are like me and have an overall positive outlook, including James Bessen, an economist  and Lecturer in Law at the Boston University School of Law. Jim Bessen, who was a good hacker with an entrepreneurial background (he created the first WYSIWYG desktop publishing software), has researched the history of computer use and employment since 1980. Jim’s research has shown that for those who can keep up with technology, there will be new jobs to replace the ones lost. Bessen, How Computer Automation Affects Occupations: Technology, Jobs & Economics, Boston University School of Law Law & Economics Working Paper No. 15-49 (1/16/16). He also found that wages in occupations that use computers grow faster, not slower:

[B]ecause higher wage occupations use computers more, computer use tends to increase well-paid jobs and to decrease low-paid jobs. Generally, computer use is associated with a substantial reallocation of jobs, requiring workers to learn new skills to shift occupations.

Also see the article in The Atlantic magazine by Bessen, The Automation Paradox: When computers start doing the work of people, the need for people often increases, (The Atlantic, 1/19, 2016) where he said:

…workers will have greater employment opportunities if their occupation undergoes some degree of computer automation. As long as they can learn to use the new tools, automation will be their friend.

This is certainly consistent with what I have seen in the legal profession since I started practice in 1980.

james_bessenJames Bessen has also written a book on this, Learning by Doing: The Real Connection Between Innovation, Wages, and Wealth. (Yale U. Press 2015). In this book, Bessen, in his words:

… looks at both economic history and the current economy to understand how new technology affects ordinary workers and how society can best meet the challenges it poses.

He notes that major new technologies always require new human work skills and knowledge, and that today, as before, they are slow and difficult to develop. He also makes the observation, which is again consistent with my own experience as a tech-lawyer, that relevant technical knowledge “develops slowly because it is learned through experience, not in the classroom.” In his analysis that is because the new knowledge is not yet standardized. I agree. This is one reason my work has been focused on the standardization of the use of active machine learning in the search for electronic evidence; see for example Predictive Coding 4.0 and my experiments at the TREC conference on predictive coding methods sponsored by the National Institute of Standards and Technology. Also see: Electronic Discovery Best Practices. In spite of my efforts on standards and best practices for e-discovery, we are still in the early, rapidly changing, non-standardized stage of new technology. Bessen argues that employer policies and government policies should encourage such on-the-job learning and perfection of new methods.

Jim Bessen’s findings are starting to be discussed by many who are now concerned with the impact of AI on employment. See for instance, Andrea Willige’s article in the World Economic Forum concerning Davos for 2017Two reasons computers won’t destroy all the jobs (“jobs don’t disappear, they simply move up the skills and wage ladder. For workers to move up the ranks, they must acquire the necessary skillset.”).

Standardization v. On-the-Job Training

Moving on up requires new employment skills. It requires workers who can step-in, step-up, step-aside, step-narrowly, or step-forward. Only Humans Need Apply; Dean Gonsowski, A Clear View or a Short Distance? AI and the Legal Industry, and, Gonsowski, A Changing World: Ralph Losey on “Stepping In” for e-Discovery, (Relativity Blog) (Interview with references to the the 5-steps described in Only Humans Need Apply). Unless and until standardization emerges, and this is taught in a classroom, the new skills will be acquired by on-the-job learning only, sometimes with experienced trainers, but more often self-taught by trial and error.

Borg_Ralph_headI have been working on creating the perfect, standard method for electronic document review using predictive coding since Da Silva Moore. I have used trial and error and on-the-job learning, buttressed by spending a month a year over the last five years on scientific research and experiments with my own team (remember my Borg experiments and videos?) and with TREC, EDI and Kroll Ontrack. Borg Challenge: Report of my experimental review of 699,082 Enron documents using a semi-automated monomodal methodology (a five-part written and video series comparing two different kinds of predictive coding search methods); Predictive Coding Narrative: Searching for Relevance in the Ashes of EnronEDI-Oracle Study: Humans Are Still Essential in E-Discovery (LTN Nov., 2013); e-Discovery Team at TREC 2015 Total Recall Track, Final ReportTREC 2016 Total Recall Track NOTEBOOK.

predictive_coding_4-0_simpleAfter years we have finally perfected and standardized a highly effective method for document review using predictive coding. We call it Predictive Coding 4.0. This method is complete, well-tested, proven and standardized for my team, but not yet accepted by the industry. Unfortunately, industry acceptance of one lawyer’s method is very difficult (impossible?) in the highly competitive, still young and emerging field of electronic document review. I create a standard because I have to in my work, not because I unrealistically expect the industry to adopt it. The industry is still too young for that. I will continue with my on-the-job training, content with that, just as Bessen, Davenport and Kirby observe is the norm for all new technologies. Someday a standard will be generally accepted and taught in classrooms, but we are far from it.

Conclusion

There is more going on in Bagley Two than objective reason, even assuming such a thing exists. Experienced attorneys can easily read between the lines. Reasoned analysis is just the tip of the iceberg, or top of the pyramid, as I envisioned in the new model for Holistic Law outlined in my prior article, Scientific Proof.

There is far more to Senior District Judge Charles S. Haight, Jr., than his ability to be logical and apply reason to the facts. He is not just a “thinking machine.” He has wisdom from decades on the bench. He is perceptive, has feelings and emotions, good intuitions and, we can see, a sense of humor. The same holds true for most judges and lawyers, perhaps even law professors. We are all human and have many other capacities beyond what robots can be trained to do.

Jason_Ralph_RobotReason is just one of the things that we humans do, and, as the work of Professor Ariely has shown, it is typically full of holes and clouded by hidden bias. We need the help of computers to get reason done right, to augment our logic and reasoning skills. Do not try to compete with, nor exclude robots from tasks involving reason. You will ultimately lose that battle. Instead, work with the robots. Invite them in, but remain in control of the processes; use the AI’s abilities to enhance and enlarge your own.

I am sure legal reason will improve in the future and become less subjective. This will happen when more lawyers Step-In as discussed in Davenport and Kirby, Only Humans Need Apply and Dean Gonsowski, A Clear View or a Short Distance? AI and the Legal Industry, and A Changing World: Ralph Losey on “Stepping In” for e-Discovery

alex_hafezMany of us have stepped-in, to use Davenport and Kirby’s language, to manage the use of TAR and AI in document review, not just me. Consider, for instance attorney Alexander Hafez, currently a “Solutions Engineer” for FTI. He was the only other attorney featured in Only Humans Need Apply. Alex bootstrapped his way from minimum wage contract document reviewer, to his current large vendor consultant “step-in” job, by, in the book’s words, “educational bricolage” composed of on-the-job learning and “a specialized course of two and some autodidactic reading.” Id. pg. 144. There are thousands of lawyers in e-Discovery doing quite well in today’s economy. The use of AI and other advanced technologies is now starting to appear in other areas of the law too, including contract review, analysis and construction. See eg. Kira Systems, Inc.

Great-Depression_LitigatorsAs the other areas of the Law become as enhanced and augmented as e-discovery, we will see new jobs open up for the steppers. Old mechanistic law jobs will be replaced. That is for sure. There will be jobs lost in the legal economy. But if Davenport, Kirby and Bessen are correct, and I for one think they are, new, better paying jobs will be created to replace them. Still, for most luddite lawyers, young and old, who are unable to adapt and learn new technologies, the impact of AI on the Law could be devastating. 

Only the tech-savvy will be able to move up the skill and wage ladder by stepping-in to make the technology work right. I attained the necessary skill set to do this with legal technology by teaching myself, by “hacking around” with computers. Yes, it was difficult, but I enjoyed this kind of learning. My story of on the job self-learning is very common. Thus the name of Bessen’s book, Learning by DoingOthers might do better in a more structured learning environment, such as a school, but for the fact there currently is none for this sort of thing, at least in the Law. It falls between the cracks of law school and computer science. For now the self-motivated, self-learners will continue to lead the way.

brad_smith_microsoftNot only do we need to improve our thinking with machines, we need to contribute our other talents and efforts. We need to engage and expand upon the qualities of our job that are most satisfying to us, that meet our human nature. This uniquely human work requires what is sometimes called “soft skills.” This primarily includes the ability for good interpersonal communication, but also such things as the ability to work collaboratively, to adapt to a new set of demands, and to solve problems on the fly. Legal counseling is a prime example according to the general counsel of Microsoft, Brad Smith. Microsoft’s Top Lawyer Toasts Legal Secretaries (Bloomberg Law, 1/18/17). The top lawyer, once CEO of Microsoft, also opined:

Individuals need to learn new skills to keep pace, and this isn’t always easy.  Over the next decade this could become more daunting still, as technology continues to change rapidly.  There is a broadening need for new technical skills and stronger soft skills.  The ability – and opportunity – to continue learning has itself become more important.

Brad Smith, Constructing a Future that Enables all Americans to Succeed, (Dept. of Commerce guest blog, 11/30/16).

The Wikipedia article on “soft skills” lists ten basic skills as compiled by Heckman and Kautz, Hard Evidence on Soft Skills, Labour Econ. 2012 Aug 1; 19(4): 451–464.

  • Communication – oral, speaking capability, written, presenting, listening.
  • Courtesy – manners, etiquette, business etiquette, gracious, says please and thank you, respectful.
  • Flexibility – adaptability, willing to change, lifelong learner, accepts new things, adjusts, teachable.
  • Integrity – honest, ethical, high morals, has personal values, does what’s right.
  • Interpersonal skills – nice, personable, sense of humor, friendly, nurturing, empathetic, has self-control, patient, sociability, warmth, social skills.
  • Positive attitude – optimistic, enthusiastic, encouraging, happy, confident.
  • Professionalism – businesslike, well-dressed, appearance, poised.
  • Responsibility – accountable, reliable, gets the job done, resourceful, self-disciplined, wants to do well, conscientious, common sense.
  • Teamwork – cooperative, gets along with others, agreeable, supportive, helpful, collaborative.
  • Work ethic – hard working, willing to work, loyal, initiative, self-motivated, on time, good attendance.

soft-skills_cartoon

As Brad Smith correctly observed, the skills and tasks needed to keep pace with technology include these kinds of soft skills as well as new technological know-how, things like the best methods to implement new predictive coding software. The tasks, both soft and technical, are generally not overly repetitive and typically require some creativity, imagination, flexibility and inventiveness and, in my view, the initiative to exceed original parameters.

cute_robotA concerned lawyer with real empathy who counsels fellow humans is not likely to be replaced anytime soon by a robot, no matter how cute. There is no substitute for caring, human relationships, for comforting warmth, wit and wisdom. The calm, knowledgeable, confident presence of a lawyer who has been through a problem many times before, and assures you that they can help, is priceless. It brings peace of mind, relaxation and trust far beyond the abilities of any machine.

Stepping-in is one solution for those of us who like working with new technology, but for the rest of humanity, soft-skills are now even more important. Even us tech-types need to learn and improve upon our soft skills. The team approach to e-discovery, which is the basic premise of this e-Discovery Team blog, does not work well without them.

ralph_17_pallate_knife_2Brad Smith’s comment on the need for continued learning is key for everyone who wants to keep working in the future. It is the same thing that Bessen, Davenport and Kirby say. Continued learning is one reason I keep writing. It helps me to learn and may help others to learn too, as part of their “autodidactic reading” and “educational bricolage.” (How else would I learn those words?) According to Bessen’s, Davenport and Kirby’s research most of the key skills needed to keep pace can only be learned on-the-job and are usually self-taught. That is one reason online education is so important. It makes it easier than ever for otherwise isolated people to have access to specialized knowledge and trainers.



2015 e-Discovery Rule Amendments: Dawning of the “Goldilocks Era”

November 11, 2015

Ralph_Losey_2013_abaThis blog presents my summary, analysis, and personal editorial comments on the 2015 Amendments to the Federal Rules of Civil Procedure that pertain to electronic discovery. The new rules go into effect on December 1st, 2015.

Overall Impressions

Overall the new Rules will be helpful, especially to newbies, but hardly the godsend that many hope for. The amendments will have very little impact on my legal practice. But that is only because the doctrines of proportionality and cooperation that the Amendments incorporate are already well-established in my firm. Many experienced attorneys say the same thing. The rule changes may make it a little easier to explain our positions to opposing counsel, and the court, but that is all.

Still, these rule amendments were not designed for experts. They were written for the vast majority of U.S. lawyers who are still struggling to do discovery in the modern age. Our profession remains embarrassingly computer challenged, so these rules are a necessary and good thing.

My only regret is that new Rule 37(e) may make it a little more difficult to catch and punish the few bad guys out there who try to cheat by destroying evidence. Still, we will get them. Fraudsters are never as smart as they think they are. When judges get the drift of what is happening, they will work around vagaries in new Rule 37(e) and send them packing. I am not overly concerned about that. Experienced federal judges can sniff out fraud a mile away and they do not hesitate to sanction bad faith attempts to game the system. We have defeated plenty of spoliating plaintiffs under the old rules and I am confident we will continue to do so under the new. The protests of some commentators on this issue seem a bit over-stated to me, although I do agree that the wording of new Rule 37(e) leaves much to be desired.

An Overly-Hard-Fought Victory for Proportionality

beavis-and-butt-head-fightingThe 2015 FRCP Rules Amendments were the most politicized and hard-fought in history. E-Discovery was the focus of all the battles. (Other changes are not-controversial and, not really that important, and will not be addressed here.) Large corporate and Plaintiffs attorney groups lobbied the supposedly independent Rules Committee for years. The well-funded defense Bar largely won, but the plaintiffs’ Bar still retained some bite and won several small victories. It was classic lobbying at its worst by both sides.

The Rules Committee should never have let itself get sucked into that kind of politics. They meant well, I’m sure, but they ended up with way too many conferences and bickering everywhere you looked. I personally got sick of it and cut way down on my schedule. I even quit one well-known group that allowed this infection to spoil its true purpose. Sad, but life is short. It is full of choices on what to do and who to do it with. I decided not to waste my time with silly games, nor watch the fall of a once great dynasty. I am consoled by the words of Churchill: “History will be kind to me for I intend to write it.”

Bottom line, partisan politics for court rule making must end with these 2015 Amendments. The judiciary and Rules Committee should be above politics. Make all of your meetings closed-door if you have to, but stop the circus. Hang your heads and learn from what happened.

As a result of the contentiousness of the proceedings, the final wording of most of the rules represent sausage making at its worst. The language is just filled with compromises. Years of interpretation litigation are assured. Maybe that can never be avoided, but certainly a better job could have been done by scholars working above the fray.

Proportionality Doctrine and the Beginning of the Goldilocks Era

In spite of the sordid background two high-minded themes emerged, much like flowers growing out of manure. The primary theme of all of the Amendments is clearly Proportionality. The secondary theme is an attempt to further attorney Cooperation by communication. Two doctrines promoted by the late, great founder of The Sedona Conference, Richard Braman.

goldilocksThe victory of proportionality proponents, myself included, may well usher in a new Goldilocks era for the Bar. Everyone who bothers to read the rules will know that they must look for discovery that is not too big, and not too small, but is just right. The just right Goldilocks zone of permitted discovery will balance out well-worn considerations, including costs, which are outlined by the rules.

This is not really new, of course. Old Rule 26(b)(2)(C) had the same intent for decades to avoid undue burden, by balance with benefits. But at least now the proportionality concerns to avoid undue expenses for discovery are up front and center to all discovery disputes. This forces judges to be more cost-conscious, and not allow liberal discovery, regardless of costs, delays and other burdens.

I have been promoting the proportionality doctrine at the heart of these amendments since at least 2010. So too did Richard Braman and his Sedona Conference. I recommend to you their latest version of the Commentary on Proportionality in Electronic Discovery (2013) that can be downloaded without cost at https://thesedonaconference.org/download-pub/1778.

For some of my articles on or featuring proportionality, please see:

Some contend that the changes in the rules embodying proportionality will make a big difference. Many long-term observers say that there are no real changes at all. It is just window dressing. So nothing will change. I think a “just rightGoldilocks type analysis suggests that the truth is somewhere in the middle, but inclined towards the “little change” side. See: Losey, R., One Man’s Trash is Another Man’s Evidence: Why We Don’t Need New Rules, We Need Understanding, Diligence, and Enforcement of Existing Rules (e-Discovery Team, 9/6/11) (criticizing the drive to solve the problems of e-discovery by just adding more rules, and suggesting instead that education and enforcement of existing rules were a better response).

Still, although a small change, and a sausage-like one at that, it is an important change. It should help all fair-minded attorneys to better serve their clients by protecting them from undue burdens in discovery, and also from undue burdens in preservation.

Goldilocks_chasedWe will all be arguing about the Goldilocks Zone now, where the burden is just right, is proportional, considering the criteria stated in the rules and the facts of the case. One size fits all is a thing of the past, especially when the one size is save everything and produce everything. Papa Bear’s big chair is way too large for most cases. And, small chair or not, every litigant is entitled to a seat at the discovery table, even a trespasser like Goldilocks.

New Rule 26(b)(1) – Discovery Scope and Limits

Here is the new language of 26(b)(1) which serves as the key provision in the 2015 Amendments implementing proportionality. Note that I have added the bullet-points here for clarity of reference and the bold. The original rules are, as usual, just one long run-on sentence.

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the

  • the importance of the issues at stake in the action,
  • amount in controversy,
  • the parties’ relative access to relevant information,
  • the parties’ resources,
  • the importance of the discovery in resolving the issues, and
  • whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this scope of  discovery need not be admissible in evidence to be discoverable.

SubJect MatterThe first big change to 26(b)(1) is not seen here because it is an omission. The scope is now limited to “any  party’s claim or defense.” Previously a court could expand relevance scope to “SUBJECT MATTER” of the case, not just specific claims. This expansion was supposed to require a good cause showing, but, in practice, this condition was given little weight by judges and poorly understood by the Bar. Full subject matter discovery was commonly allowed with little or no real showing of cause. Often responding parties would simply capitulate and not demand a good cause showing. This could, in my experience, often lead to greatly expanded discovery. Now relevance cannot be expanded beyond actual claims made. This is a big improvement.

I am proud to say that this is a revision that I suggested to the Committee for adoption. I accomplished this without lobbying. My one direct conservation with the big-name Committee chair at a Bar event was about two minutes long. I outlined the idea and suggested the Committee at least consider it. The elevator-speech proposal was instantly rebuffed by her. She smiled and said that had been considered many times before over the years and simply was not “politically doable.” Silly me, to resurrect such an old, stale idea.

Still, I had a beginners mind on rule changes. I was convinced we needed to tighten the spigot of relevance to help counter-act the information deluge. I updated my prior blog on the proposal, added some more legal citations and analysis to make it more scholarly, and put forth my best argument. Rethinking Relevancy: A Call to Change the Rules to Narrow the Scope of ESI Relevance (e-Discovery Team, 1/24/2011). That’s it. I wrote a 3,700 word article. Nothing more. I knew the Committee would at least know about the article, and maybe some would read it, as I knew that some of them were regular readers.

Since the proposal had merit, as far as I was concerned, that was all that was required. No politics. No lobbying, just one chat where the chair said no-way, and then submission of an  article making my case for elimination of “subject matter” discovery. In my case that was all that was necessary. It worked. That is how it should work. I was actually completely surprised to see the elimination of the old subject matter provisions when an early draft was published by the Rule Committee. All the Committee Note says about this change is as follows:

The amendment deletes the former provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. Proportional discovery relevant to any party’s claim or defense suffices. Such discovery may support amendment of the pleadings to add a new claim or defense that affects the scope of discovery.

The attention and politics of the Committee was focused on the new wording added to Rule 26(b)(1), which outlined the six criteria to consider to determine proportionality:

  1. the importance of the issues at stake in the action,
  2. amount in controversy,
  3. the parties’ relative access to relevant information,
  4. the parties’ resources,
  5. the importance of the discovery in resolving the issues, and
  6. whether the burden or expense of the proposed discovery outweighs its likely benefit.

Not sure why this was such a big deal for them because in fact none of this language is new at all. All the Committee ended up doing was use the exact same language that appeared in Rule 26(b)(2)(C) and then add the parties’ relative access to relevant information.  This last addition was a last minute addition. All it does is add the accessibility provision already in Rule 26(b)(2)(B) that was added in the 2006 Amendments. You would think the Committee would improve upon the language more to give the Bench and Bar more guidance. Still, the importance of the proportionality requirement is intended to be elevated by this move to the defined scope of relevance section, the section where discoverability is limited to information that is proportional to the needs of the case.

Here is the Committee Note explaining their revision, one that many now seize upon as some bold godsend:

The considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii). Although the considerations are familiar, and have measured the court’s duty to limit the frequency or extent of discovery, the change incorporates them into the scope of discovery that must be observed by the parties without court order.

Dear Committee, they are more than just familiar as your Note says, they are exactly the same! Please. Many had hoped for more, myself included. Oh well, what do you expect from political sausage?

In any in-person presentation of these rules I would now go through how these four factors play into discovery in various types of cases. In my firm I discourse at length on how this plays out in employment cases.

  1. the importance of the issues at stake in the action,
  2. amount in controversy,
  3. the parties’ relative access to relevant information,
  4. the parties’ resources,
  5. the importance of the discovery in resolving the issues.

Goldilocks ZoneThere is really nothing new here except the third point about relative access, and, in my opinion, that last minute addition by the Committee adds nothing. It was already in 26(b)(2)(B). I have been applying these factors and analysis for over thirty-five years. I have been calling it proportionality for over five years.

In most cases, but certainly not all, the main factor that comes into play is expense. Does the burden or expense of the proposed discovery outweighs its likely benefit? And what is the real, non-inflated, amount in controversy? The main change the proportionality labeled rules now force is a shift in thinking, to try to get the Bench and Bar to look at discovery as the tradeoff that it has always been, to try to get everyone thinking proportionally.

Reasonably_CalculatedThe final relevant change to 26(b)(1) already seems to be widely misunderstood by the Bar, namely the rewording of provisions in the rule pertaining to discovery and admissibility. The old rule, which many lawyers disliked for good reason, said: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” It is true that this sentence was deleted, but it is not true that discovery is limited to admissible evidence. I have already seen at least one CLE, sponsored by the ABA no less, that incorrectly states that the old standard is dead. It is not. Weakened perhaps, but not gone. Remember, we are dealing with politics again and compromise language. The Plaintiffs’ Bar managed to keep the idea alive, but the sentence was modified and its placement shuffled. Rule 26(b)(1) still says:

Information within this scope of discovery need not be admissible in evidence to be discoverable.

Here is how the Committee Note explains this revision:

The former provision for discovery of relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence is also amended. Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery. Hearsay is a common illustration. The qualifying phrase — “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence” — is omitted. Discovery of inadmissible information is limited to matter that is otherwise within the scope of discovery, namely that which is relevant to a party’s claim or defense and proportional to the needs of the case. The discovery of inadmissible evidence should not extend beyond the permissible scope of discovery simply because it is “reasonably calculated” to lead to the discovery of admissible evidence.

I predict that we will be litigating that oh so subtle distinction for years. It remains to be seen what the Magistrates who usually rule of such issues will make of this change. It also remains to be seen what the practical impact of this change will be. I think that the “claims made” versus “subject matter of the litigation” change will have a far greater impact.

What is a Proportional Spend on e-Discovery?

Assuming that monetary factors are the primary considerations in a case, how much should be spent on electronic discovery? Do not just brush the question aside by saying every case is different. They are many similarities too. The longer you practice the more aware you become of the recurring patterns. What I want the Bench and Bar to do is start thinking proportionally. To start thinking from an over-all budgetary perspective.

Consider this hypothetical, one where all other factors being equal, money was the primary criteria to evaluate proportionality.

  • Assume a case with a real-world true value of $1,000,000.
  • What would be a proportional total cost of defense?
    • Assume $381,966 (@38%)
  • What would be a proportional total cost of all discovery in such a case?
    • Assume $145,147 (@14.6%)
  • Now for the punchline, what would be a proportional cost of e-discovery in a case like that?
    • Assume $55,157 (@5.6%)

Where am I getting these numbers?

In part I am getting these dollar amounts from my 35 years of experience as an attorney in private practice handling a wide variety of commercial litigation vases, mainly large ones, but also many smaller cases too, and lately including many, many employment law cases.

These numbers may not hold true in single plaintiff discrimination cases, or other small matters. But there may be some general truth here. You can see that from the fact that most Bar associations allow 40% recovery for fees in contingency cases. That compares to the 38% proportional expense assumed here: $381,966 in total fees and costs for a million dollar case (remember, assume true settlement value here, after weighing and discounting risks, not b.s. positions or demands). What do you think? Is approximately 38% of the true case value a proportional total expense in complex litigation? Does 38% seem appropriate? Too high, too low? What do you think is a proportional percentage? Please leave your comments below or send me a private email.

What about my assumption of a total cost for all discovery of $145,147 in a case where total fees are $381,966. Is it reasonable, proportional, to assume a spend of $145,147 for discovery of all types, including e-discovery? That represents around 14.6% of the total amount in controversy. Is that number too low? Too high?

Is it proportional to assume a spend of around 5.6% of the total amount in controversy for all e-discovery related activities in a case? Under this million dollar scenario that would be $55,157. Again, what do you think? And a different but related question, what has your experience been?

Now consider the bigger question, does a general metric for Proportionality of expenditures to true case value make sense in the law? Be it 38% or whatever?

Assuming it makes sense to talk of a general ratio for proportionality: Is the 6% of the total value of a case a reasonable amount for a party to pay for ESI discovery alone? If not, higher or lower? What ranges are you seeing in practice? I am seeing a wide variety, but I think that is because we are still in an early stage of maturity, and that it will eventually settle down into a pattern.

Did you know that Intel has gone on record many times as reporting that its e-Discovery spend in large cases averages 80% of its total spend for cost of defense? Since Intel says an average of 80% of its total litigation cost go to e-Discovery, if they spent $400,000 to defend a $1 Million case, that would be a spend of $320,000 on e-discovery, which is 32% of total case value, not 6%. Does this seem fair? Appropriate? Proportional?

I can see patterns and costs ranges, but at the same time I see outliers in cost, especially on the high-end. In my experience these are usually due to external factors such as extreme belligerence by one side or the other, attorney personality disorders, or intense spoliation issues. Sometimes it just may have to do with information management issues. But if you discount the low and high outliers a pattern starts to emerge. Hopefully someday an objective, systematic study will be done. My observations so far are just ad hoc.

Might the Golden Ratio Help Us to Navigate the Goldilocks Zone?

Aside from my long experience with what lawsuits cost, and the experience of others, the primary source of my hypothetical numbers here is from a famous ratio in math and art known as the Golden Ratio or Golden Mean: 1.61803399 to 1.0.

phisection

I came up with the numbers in the hypothetical by use of this ratio:

$1,000,000 – $381,966 (38%) – $145,147 (14.6%) – $55,1567 (5.6%)

These numbers are progressively smaller by .3819661%, and in this manner follows the proportion of the Golden Ratio.

The Golden Ratio is mathematically defined as the division where a+b is to a, as a is to b, as shown below. In other words, “two quantities are in the golden ratio if the ratio of the sum of the quantities to the larger quantity is equal to the ratio of the larger quantity to the smaller one.”

Golden_ratio_line

In Math this is known as PHI – Φ.

golden ratio shown in a model's faceIt does not matter if the math confuses you, just know that this proportion has been considered the perfect ratio to evoke feelings of beauty and contentment for thousands of years. It is well-known in all of the Arts, including especially Painting, Music and Architecture. It is the division that feels right, seems beautiful, and creates a deep intuitive sense of perfect division. It still does. Just look at the designs of most Apple products. This ratio is also found everywhere in nature, including the human body and structure of galaxies. It seems to be hardwired into our brains and all of nature.

I put together the two videos below to illustrate what I mean. There is far more to this than a math trick. The Golden Ratio seems to embody a basic truth. Every educated person should at least be familiar with this interesting phenomenon.

___

Perhaps the idea of perfect proportionality in art, math and science may also apply to law? Maybe it is a basic component of human reasonability and fairness? What do you think?

After giving a presentation much like this at a CLE I asked the question of whether the Golden Ratio in art, math and science might also apply to the law? I wanted to know what everyone thought and to get some interaction going. It was a daylong conference sponsored by Capital One and dedicated solely to the topic of Proportionality. Maura Grossman and I co-chaired the event in the Fall of 2010, when the doctrine was still new. Everyone had a clicker and answered yes or no to the question.

There was an eerie silence in the large auditorium after the results were quickly tabulated and shown on screen. Do you know what the proportion of yes and no answers were? 38% said NO, and 62% said Yes. The Golden Ratio came though in the opinion of the 200 or so attorneys and judges in attendance. You cannot make this stuff up. At first I thought maybe the boys in the tech booth were messing with me, but no. It was automatic and they were not paying attention. It was real. It was beautiful.

Facciola has proportionalityAsk Judge Facciola about it sometime. He was there and right after my opening spoke of the Golden Ratio as used in music. I remember he played an example from Bach. Judge Peck, Judge Mass and Judge Hedges were also there. So too was Judge Grimm, but by video appearance. Jason Baron, Conor Crowley, and Patrick Oot were also in attendance. So, I have a lot of witnesses to confirm what happened. It was a landmark event in many ways. One I will never forget for a whole host of reasons.

golden ratio is based in the Parthenon

A natural ratio clearly exists for proportionality in nature, art and math. I am not saying that this 38/62 ratio, 1.61803399, should apply in the law too as a general guide for proportionality. But it might. It is at least something to think about. What do you think? Again, let me know.

russian dollsFYI, I have written about this before with several examples, but never before described the Capital One conference and spooky Golden Ratio vote. My Basic Plan for Document Reviews: The “Bottom Line Driven” Approach (see especially footnote 15 and supporting text where I compare this drill-down proportionality analysis to Russian nesting dolls).

Change to Rule 37(e)

Rule 37(e) was completely rewritten and was the focus of most of the politics. That explains why the wording is such a mess. The Sedona Conference recommendations on how to revise the rules were largely ignored.

Judge Shira ScheindlinA large part of the politics here, from what I could see, was to counter-act Judge Shira Scheindlin (and a few other powerful judges, mostly in SDNY) who interpreted 2nd Circuit law to assert their right to impose case dispositive sanctions on the basis of gross-negligence alone. See: Pension Committee of the University of Montreal Pension Plan v. Banc of America SecuritiesLLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010). Many in the defense Bar argued that there was a dangerous conflict in the Circuits, but since any large company can get sued in New York City, the SDNY views took practical priority over all conflicting views. They complained that the SDNY outlier views forced large corporations to over-preserve is a disproportionate manner.

Naturally Judge Scheindlin opposed these revisions and vigorously articulated the need to protect the judicial system from fraudsters. She proposed alternative language. The plaintiffs Bar stood behind her, but they lost. Sedona tried to moderate and failed for reasons I would rather not go into.

Other Circuits outside of New York make clear that case dispositive sanctions should only be imposed if INTENTIONAL or BAD FAITH destruction of evidence was proven. Many defense Bar types thought that this distinction with GROSS NEGLIGENCE was a big deal. So they fought hard and now pat themselves on the back. I think their celebration is overblown.

I personally do not think the difference between Bad Faith and Gross Negligence is all that meaningful in practice. For that reason I do not think that this rule change will have a big impact. Still, it is likely to make it somewhat easier for parties accused of spoliation to defend themselves and avoid sanctions, especially strong sanctions. If you think this is a good thing, then celebrate away. I don’t. The reality is this revision may well harm parties on both sides of the v., defendants and plaintiffs alike. I know we now see many Plaintiffs destroying evidence, especially cloud emails and Facebook posts. I expect they will rely upon this rule change to try to get away with it.

We will be litigating these issues for years, but as mentioned, I have faith in our federal judiciary. No matter what the rules, if they sniff out fraud, they will take appropriate action. The exact wording of the rules will not matter much. What was once labeled gross negligence will now be called bad faith. These concepts are so flexible and the entire pursuit of fraud like this is very fact intensive.

I think the best thing to do at this point is all of Rule 37(e) in full, as it bears repetitive reading:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Judge Lee RosenthalI could talk up each paragraph, but this article is already overly long. I only pause to note how the rule now makes proportionality expressly relevant to preservation for the first time. Before this change our primary authority was the Order of the former Rules Committee chair, Judge Lee Rosenthal. Rimkus v Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010):

Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done – or not done – was proportional to that case and consistent with clearly established applicable standards.

I strongly recommend that you read the extensive Committee Note that tries to explain this rule. The Notes can be cited and are often found to be persuasive, although, of course, never technically binding authority. Still, until we have case law on Rule 37(e), the Notes will be very important.

Minor Changes to Rules 26 & 34

Under Modified Rule 26(d)(2) a Request to Produce can be served anytime AFTER 21 days from the service of process.  You do not have to wait for the 26(f) conference. Under Modified Rule 34(b)(2)(A) a response to an early RFP is not due until 30 days after the parties’ first Rule 26(f) conference. This early service change was designed to encourage meaningful ESI discussion at 26(f) meet and greets.

Rule 34(b)(2)(B) was modified to require specific objections to request categories and “state whether any responsive materials are being withheld on the basis of that objection.” No duh, right? Yet I have seen this time and again, an objection is stated where no documents exist to begin with. Why?

Rule 26(f) was modified to include discussion of preservation, but also to include discussion of Evidence Rule 502 – Clawback Orders.

Change to Rule 16(b)

claws dementorNew language was added to Rule 16(b) as follows:

Scheduling Order may …

(iv) “… include any “agreements reached under Federal Rule of Evidence 502.”

(v) “direct that before moving for an order relating to discovery, the movant must request a conference with the court.”

Everyone is encouraged to entered into clawback agreements and 502(d) orders.

Change to Rule 1: An Already Great, But Underused Rule, Is Now Even Better

Waxse_LoseyI saved the best rule change for last, the change to Rule 1.0. Judge Waxse, the great promoter of Rule 1.0, should be happy (he often is anyway). Rule 1.0 FRCP – the JUST, SPEEDY AND INEXPENSIVE rule – is one of the most important rules in the book and yet, at the same time, one of the most overlooked and under-cited. All of the e-discovery knowledgable judges, not just David Waxse, can and do wax on and on about this rule. 

The 2015 Amendments are designed to further strengthen this important rule.  Rule 1 has long required judges to “construe and administer” all of the other rules in such a way as to not only secure “justice,” as you would expect, but also to secure “speedy and inexpensive” determinations. Surprised?

This dictate has long been an important policy for rule construction. It has been helpful to those who used it to oppose expensive, burdensome e-discovery. Nothing drives up expense more than “discovery about discovery” or detours into whether efforts to preserve, search or produce ESI have been extensive enough. Courts may allow this kind of expensive discovery if justice requires it, but only after balancing the other two equally important considerations of speed and expense. Here we have another proportionality analysis, one that applies indirectly to every other rule in the book.

The 2015 Amendments enlarged and strengthened the “just, speedy and inexpensive” dictates by making it clear that this duty not only applies to the court, the judges, but also to the parties and their attorneys. Moreover, the revised rule not only requires judges and parties to construe and administer the rules to attain just, speedy and inexpensive determinations, it also requires them to employ all of the other rules in this manner. The revised rule 1.0 reads as follows (new language in bold):

They (all of the rules) should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

These revisions squarely place the burden of efficient litigation upon counsel, as well as the court. It is now a clear rule violation for an attorney to demand justice, no matter what it costs or how long it takes. All three criteria must be considered and implemented.

The Rule 1.0 change perfectly frames all of the other 2015 Amendments on proportionality and cooperation in ESI discovery and preservation.  As the Rules Committee Commentary to the Rule 1.0 amendments explains:

Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage overuse, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”

Rule 1.0 now stands as powerful shield to oppose any counsel’s improper use of discovery as a weapon. Cost and delay must always be taken into consideration. Every motion for protective order should begin with a recitation to Rule One.

Conclusion

Ralph_x-mas_2013Update all of your discovery briefs to incorporate the new rules. Think proportional and act proportional. Sherlock Holmes was famous for his 7% solution, try mixing up your own 5.6% solution. That would be beautiful wouldn’t it, to only spend $5,600 total on e-Discovery in a $100,000 case? Try to come up with an overall budget. Figure out what you think is proportional to the case. Do not wait to respond to excessive demands. Be proactive. How many custodians are proportional? What is an appropriate date range? What ESI is really important and necessary to the case? How many files need be reviewed under a realistic cost-benefit analysis? What are the benefits? The burdens?

Talk about true case value with opposing counsel. Never bad mouth your client, but be honest. Get beyond the b.s. and posturing that does nothing but cause delay and expense. That is the only way your proportionality discussions will get real. The only way the judge will ever see things your way.

Other side won’t cooperate? Dealing with inept phonies? Have these discussions with the judge. Ask for a 16(b) conference to work out disagreements that surface in the 26(f) conference. Most judges have a pretty good feel for what certain kinds of cases are usually worth. Have the wake-up call early and try to save your client money. Analyze and argue benefit/burden. Also, be real and do not exaggerate what your e-discovery expenses will be. Back up your estimates with realistic numbers. Get vendors or specialists to help you.

All of this means that you must front-end your e-discovery work. It should come right after the retainer clears. The new Rule 37(e) is not a free pass to let up on preservation efforts or data collection. Find out what your problems are, if any, and talk about them asap. Bring them to the attention of the judge. Show that you are in good faith. The law never demands perfection, but does demand honest, reasonable efforts.

Make your discovery plan early. What do you want the other side to produce? Be specific. Have concrete discussions at the 26(f). The judges are getting fed up with drive-by meet and greets. It is dangerous to put off these discussions. Arrive at a fair balance between risk mitigation and cost control and move things along counsel. Speed counts, right up there with expense and justice. Your clients will appreciate that too.

Use honesty and diligence to navigate your way to the Goldilocks zone. Steer with realistic analysis. Be driven not only by the desire for justice, but also for quickness and sparse expense. Learn the new analytics, the new language and concepts of proportion. Master these new rules, as well as the e-discovery rules that remain from the 2006 Amendments, and you will prosper in the new Goldilocks Era.


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