Happy Thanksgiving!

I for one plan to celebrate Thanksgiving by spending more time with the family and less time with the law, at least for a while. Still, it’s not Thanksgiving yet. So I’ll venture a short e-discovery essay with some sort of gratitude theme. But first of all, let’s start with a little humor and allow me to express my thanks that my family scene is more like the original Norman Rockwell shown right and not the “redneck” version below! On a serious note, I am thankful for many things this year, and recall the words of the great Christian mystic, Meister Eckhart, who said “If the only prayer you said in your whole life was, “thank you,” that would suffice.”

I am also grateful that I did not represent the defendant in Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D.Ok., July 29, 2009). The primary issue addressed in this order by United States Magistrate Judge Paul J. Cleary is who should be sanctioned for spoliation of evidence – the usual, email of course. Should it be defendant’s local counsel, defendant’s large national counsel, McGuire Woods, or the defendant itself. The plaintiff naturally wanted monetary sanctions imposed against them all, and their little dog too, and adverse inferences, and costs, and a default judgement, and whatever else they could get. Plaintiff got a sanction all-right, but unfortunately for them, it was more in the whatever category, and certainly not high-up on their wish list of hoped for punishments. I’ll get to that at the end as a just desert.

This sanctions case flows from Qualcomm and the ethics question of the hour – whose to blame: in-house or out-house? The underlying issue is where does the Zubulake Duty fall? On the shoulders of outside counsel alone or in-house counsel alone, or on both, or what? The correct answers is, I think, like many in the legal world: it depends. It depends upon all of the surrounding facts and circumstance of the case, who said what, and who did what?

Of course, since it depends on all of these facts, there goes the old privilege and work product protections, and instead, here comes discovery about discovery. This is not a place you want to be and smart attorneys go to great pains to avoid this turkey. They should never let the delicious email go to waste. They should get it on their plate and eat it as fast as they can. Because if they don’t, and it spoils, then the blame game can follow next, and then everybody on your side gets food poisoning.

This conflict on whose duty it is, has become a real source of tension between in-house counsel and retained counsel. The law is unclear and this greatly exacerbates the problem. So too does the recession, or depression, or whatever you want to call the economic pressure cooker we are now in. What is outside counsel to do when, for instance, in-house counsel says: don’t worry, we’ll handle it. You just try the case and we’ll take care of the ESI preservation, retrieval, and the like. I have written about this before in In-House Counsel Sanctioned for Defendant’s Failure to Preserve Evidence. I also talked about this recently at the Georgetown Advanced e-Discovery Institute in D.C. during the Ethics panel with Judge Facciola, Ariana Tadler, and Ed Rippey. Everyone agreed this is one of the most pressing discovery ethics problems of our day.

The Pinstripe case is a good illustration of this tension in an everyday kind of garden variety commercial dispute. The case was big enough for the defendant, Manpower, Inc., to have both local counsel and national counsel going up against an Oklahoma corporation represented by a hometown law firm in Tulsa. The local plaintiff’s counsel not only came after the defendant and its big firm counsel, they also sought sanctions against their fellow Tulsa counsel for defendant. Local counsel then employed the classic Sargent Schultz defense. Schultz, of course, was the lovable prison guard (you don’t hear that often) in Hogan’s Heros who made a point of seeing and knowing nothing, nothing – that might get him into trouble. This is the defense that any local counsel would employ in this situation, and it worked like a charm. Here is how Judge Cleary put it:

The Court finds no basis for a sanction award against the Crowe & Dunlevy (“C & D”) law firm. C & D served as local counsel in this matter, but had little, if anything, do so with formulating or monitoring Manpower’s discovery responses. C & D was not involved in the discovery exchanges between Manpower and McGuireWoods and C & D did not even know there was a discovery dispute between Manpower and AK until Feb. 18, 2009.

Id. at *2. One wonders what they did do. Apparently, they were able to act as local counsel without signing discovery pleadings, which is, in my experience, fairly rare. They should give thanks for that ruling.

Next the Tulsa firm for the plaintiff went after the big boys, the McGuire Woods law firm, who apparently acts, or at least did, as national counsel for Manpower, Inc. I know a few of the McGuire Woods e-discovery specialists and they are a good firm. If it can happen to them, it can happen to you too. They were the law firm in the know as to the e-discovery in this case, at least up to a point, then they too turned into Schultz. The plaintiff’s firm knew they were in charge, and having read Mancia v. Mayflower, or at least the parts on Rule 26(g), moved for “sanctions against Manpower’s counsel for their wrongful certification that Manpower’s discovery production was complete.” Id.

Here is how the court then gave McGuire Woods something to be thankful for:

B. Sanctions Against McGuireWoods

The records evidence establishes that McGuirewoods worked on a revised document retention policy for Manpower. The policy required retention of relevant documents once a lawsuit was filed. If employees had any questions about a document, they were to contact the legal department. McGuireWoods drafted a litigation hold for Manpower and sent it to the client shortly after this lawsuit was initiated in Tulsa County District Court. The firm believed the litigation hold was in effect; however, some 14 months later it was learned that Manpower had never put the litigation hold in place. In the meantime, McGuire-Woods, relying on representations of Manpower, told AK that document production was complete. That, it turned out, was false.

*3 The record reflects that McGuireWoods sought to confirm with its client that all documents responsive to AK’s discovery requests had been produced. Fed.R.Civ.P. 26 provides that by signing a discovery request or response, an attorney is certifying its reasonableness. The Advisory Note to the 1983 Amendment to Rule 26 provides: “In making the inquiry, the attorney may rely on assertions by the client and on communications with other counsel in the case as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.”

The Court finds that McGuireWoods made reasonable inquiry as to the completeness of Manpower’s document production and relied on the client’s representations in that regard. Accordingly, I find that sanctions are not warranted against McGuireWoods.

I doubt that every judge in the country would be as lenient as Judge Cleary was here. The opinion states that all that outside counsel did was prepare and send a litigation hold notice to the client. That is really pretty hard to believe. Normally there would be some communication by and between outside counsel and inside counsel on the preservation notice, an email, a mention in a phone call, or something. But apparently they never talked about it at all. I am quite sure that is not their standard practice, and most certainly is not a best practice. It is a fluke to never mention it. There should normally be follow-up of some kind.

But wait, there is still more. Judge Cleary also appears to say that defense counsel had no involvement whatsoever in their client’s e-discovery process. Not only were they uninvolved in the preservation, beyond drafting a letter, but they were absent from the identification, collection, processing, analysis, and review as well. Apparently, they delegated the entire process to the client and relied upon the client’s representations, which, according to Judge Cleary, proved to be false. This sounds a lot like the empty head, pure heart defense, an approach that many judges strongly reject. McGuire Woods should be grateful for this lenient ruling.

Judge Cleary in Pinstripe concludes that it was enough for outside counsel to just ask their client if that was everything. To justify this Judge Clearly relies upon the Rule Commentary, which says that reliance on a client’s assertions alone may sometimes be sufficient, depending on the circumstances, to satisfy the reasonable inquiry duty of Rule 26(g). The problem is, Judge Cleary does not go on to explain what those circumstances were in this case and so the usefullness of this opinion is quite limited.

Many facts are left unsaid here. I must, for instance, assume that Manpower has its own in-house counsel, and probably an experienced one at that, who just happened to make an honest mistake. I only wish that Judge Cleary had gone into more detail on these facts. Since they are absent, the opinion can be misconstrued to mean that compliance with Rule 26(g) merely requires a phone call to the client. There may well be circumstances where such reliance is appropriate, especially in low dollar cases with known competent in-house. But in many, perhaps most circumstances, a phone call alone is certainly not reasonable diligence. Outside counsel are in charge of discovery, not the parties, even if they have their own in-house counsel. Most judges will not tolerate such over-delegation of discovery responsibilities by the counsel of record to the party, except, as mentioned, in extraordinary circumstances.

As to the party itself, Manpower, Inc., Judge Cleary concluded:

It is clear that Manpower failed to meet its obligations to preserve possibly relevant documents for use in this lawsuit. Manpower failed to issue the litigation hold drafted by McGuireWoods and failed to monitor compliance with the oral instructions given to some Manpower managers. As a direct result, possibly relevant e-mails were destroyed.

From my review of the record evidence and counsels’ presentations at the July 13 hearing, I conclude that Manpower’s conduct was not intentional and does not reflect that documents were deliberately destroyed because the company believed its defense to this action is weak or otherwise vulnerable. Thus, I do not find a basis for the extreme sanctions of default judgment or adverse inference instruction. Clearly, however, an appropriate sanction is merited.

Id. at *3. Once again, Judge Cleary does not share with us the facts that persuaded him to conclude that this was just negligence, and not bad faith, but he does go on to include a good summary of the law:

*4 Some courts have found that mere negligence is sufficient to establish a “culpable state of mind” for purposes of an adverse inference instruction. However, that is not the rule in this Circuit. Aramburu v. The Boeing Company, 112 F.3d 1398, 1407 (10th Cir.1997) (“mere negligence” in losing or destroying records is not enough to reflect consciousness of a weak case.). Bad faith is required. “The adverse inference must be predicated on the bad faith of the party destroying the records.” Id. The Court finds that Manpower’s conduct did not amount to bad faith and, thus, an extreme sanction such as adverse inference or default judgment is not warranted.

Conclusion

Now for the just deserts. Since there was no bad faith, no default was entered, no adverse inference instruction provided, and no fees or costs were taxed against anyone in Pinstripe, Inc. v. Manpower, Inc. Manpower should be grateful here too, for the ruling against them could have been far worse.

Judge Cleary did, however, want to send a message of some kind. He obviously felt that some sort of sanction should be entered against Manpower for the negligent conduct he had seen (but did not care to describe in any detail). So, he proved just how creative jurists in Oklahoma can be. He ordered Manpower to “contribute the sum of $2,500 to the Tulsa County Bar Association to support a seminar program on litigation hold orders, and preservation of electronic data.” Id. at*4. I kind of doubt that I will be invited to speak at that one, but anyway, I am glad to see some good come out of this turkey.

In closing, please consider these Thanksgiving words:

As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them.

John Fitzgerald Kennedy

Jurors Rebel, Defy Judges, and Google Their Own Truth

Over a century ago Justice Holmes wrote that “[t]he theory of our [legal] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907). Holmes’ words ring as true today as they did a generation ago. Without the power to effectively control the admission of evidence, a judge cannot ensure that justice is done. Unfortunately, judges are finding it increasing difficult to control what evidence jurors consider. In today’s information flooded, total-connectedness world, short of sequestering all jurors in multi-day trials and holding them prisoner, it may well prove impossible. This is turn may mean the end of the jury trial as we know it.

We live in an information age, a new period in history literally and semantically defined by the ability of individuals to transfer information freely, and to have instantaneous access to information that would have been difficult or impossible to find in Holmes’ time. More and more Americans never leave home without an Internet-enabled Smartphone at their hip. Many are accustomed to quickly and easily looking up an answer to any question on such a phone, and receiving an instant answer. They want information, and they want it now, and they will sometimes go to great lengths to get it.

We are all rapidly becoming addicted to this flow of information, and increasingly intolerant about being left in the dark about anything. Jurors are much the same. As a consequence, juror curiosity is wrecking havoc in courtrooms across the country. You may take them to a jury room, isolate them, hold them there against their will, and give them a number, but inside they still remain what they were before, free and connected. More and more jurors refuse to limit their information to what the courtroom says is true, no matter what rules and threats the judge may impose. They insist that they are not a number, they are a free Man. And as such they will look at all of the information they can find, not just what the Village chooses to say is real.

Earlier this year in Florida, Judge William J. Zloch presided over a case where the Defendant spent almost eight weeks fighting charges that he had illegally sold prescription drugs through bogus Internet pharmacies. The trial made it through closing arguments, and while the jury was deliberating a juror contacted the judge to report that another juror had admitted to her that he had done outside research on the case over the Internet.

Judge Zloch questioned the juror about his research, and found that it included evidence that the judge had specifically excluded. At this point, the trial might have still been salvageable; the juror could have been removed from the jury and deliberations could continue. However, Judge Zloch stumbled upon further juror misconduct. Eight other jurors had been doing independent research, blatantly disregarding the jury instructions.

These jurors were conducting Google searches on the lawyers, on the defendant, looking up news articles about the case, checking definitions on Wikipedia, and searching for evidence that had been specifically excluded by the judge.

One juror, when asked by Judge Zloch about the research, responded “[w]ell, I was curious.”

The New York Times coined the phrase “Google mistrial[,]” in an article describing this trial, and opined that there will be more and more Google mistrials as more and more incoming jurors are Internet savvy. Judge Zloch happened to stumble on this misconduct, but it is likely that jurors do similar research in the majority of jury trials lasting more than a day. And from the jurors’ perspective, why not? Why should they believe the judge, who some think is just a new version of The Prisoner’s Number 2, dressed in a black robe.

To the average juror, there is no real harm or consequence from violating the jury instructions. Jurors resent the fact that information is controlled by the judge.  They believe they should be privy to anything that either side wants to present to them. Nothing perks juror interest like an objection, and jurors now have the ability to overrule a judge’s decision to exclude evidence by simply going online and doing some digging.

Moreover, jurors care greatly about plenty of irrelevant issues. As indicated by what the jurors were researching in the original Google mistrial, jurors often care about who the lawyers are and about a variety of information completely irrelevant to the case presented.

Jurors may decide to look up an accident scene on Google Maps, and draw erroneous conclusions based on an amateur assessment of the area.  They may decide that they dislike the lawyer’s web page and hold that against the client. They may simply Google the Defendant’s name and base their decision on what they gather to be the Defendant’s reputation from a spattering of blog postings and search results.

I am sure that many jury verdicts in the past few years have swung one way or another based on independent juror research. This is especially frustrating considering the amount of money spent in litigation. I have served on a jury once myself and know first hand just how vague and uncertain the whole jury deliberation process is.

The adversarial system involves huge transaction costs, and woeful inefficiencies. Large fortunes are spent in most major litigations. Our system tolerates these costs, as it puts a very high premium on the truth-finding properties of the adversarial system. Much like our system is skewed in the criminal context to allow ten guilty men to go free, rather than risk an innocent man going to jail, it is skewed in the civil arena to allow for fortunes to be spent on legal fees so that the legal claims are forced to go through a regimented process.

If the parties put vast resources into a trial, and the jury reaches a decision based upon extraneous evidence, huge amounts of resources have been wasted. Assuming both parties have plausible claims and the jury will reach a decision based upon extraneous variables that have little to do with the merits of either parties claims, it would be more efficient to flip a coin at the outset and skip the transaction costs.

Contrary to juror conceptions, for our system to work judges must be able to control a juror’s access to information. The adversarial system works in large part as a result of cross-examination, and counsel has no way to challenge information a juror secretly obtains. No one can cross-examine what they can not see or hear. Much as innocent curiosity killed the cat, juror curiosity threatens to kill the effectiveness of our adversarial system.

And why should the juror care? Jury duty is not something many approach with enthusiasm, and many jurors ignore (if they even listen to) judicial instructions to refrain from conducting independent research. There is very little chance that independent jury research will be detected; there is no surefire and efficient way to tell if a juror has been poking around the Internet.

Judges have the ability to sequester a jury, but doing so is expensive and often a waste of scarce judicial resources. Outside of sequestration, there is little a judge can do to control what a juror researches at home. While a court could theoretically monitor jury Internet usage, doing so would be expensive and likely run afoul of a bevy of privacy rights.

Even if a judge catches a juror doing outside research, what does the juror care? The juror would likely be dismissed, a fate that many jurors would welcome rather than fear. The chances of the judge holding a juror to task for independent research are slim to none; few judges want to expend the resources or generate the ill-will that would accompany holding a juror in contempt, much less fining them or sending them to jail. Yet, to continue the jury system judges may well have to get tough. There is no way Number 6 types will obey Number 2, but for the scary, screaming Bubble and ocassional Village accident.

At the end of the day, a judge often has no choice but to trust jurors to follow instructions. And, predictably, jurors catch onto this quickly and realize they can look up what they like, consequence free.

So, how to prevent Google mistrials? With our current system in place, total prevention is likely impossible. Still, steps can be taken to minimize the risk. Judges can impress upon jurors their duty to refrain from doing any sort of outside research, and to suppress their curiosity for the duration of the trial. If a judge makes it very clear from the outset of the jury selection what is prohibited (i.e., any Internet search on the lawyers, evidence, ect.) than it is less likely that a juror will run afoul of the rules.

Taking away jurors’ phones is also a must and a very easy preventative step to take. While some judges are surprisingly hesitant to ban phones from their courtroom, keeping phones out of the courtroom prevents jurors from conducting research while they are in the courthouse, keeps the jurors attentions focused on the trial as opposed to text messages and video games, and helps minimize courtroom disruptions.

Fear, however, is probably the most powerful motivator in existence. Impressing upon jurors the personal potential consequences (even if unlikely) of violating the jury instructions might be able to skew the juror’s internal cost-benefit analysis of violating the rules via independent research. If a judge makes it clear to a jury that indulging in curiosity and running a few quick Google searches could result in jail time and a fine, that jury pool is far less likely to put their necks on the line simply to satisfy their curiosity.

This, however, brings up a thorny issue. For this warning to stick, some jurors need to be made examples of.  Some judges may need to fine or jail jurors in order to stop the trend cold before it grows out of hand. But this would be a tough thing to do. Jury duty is not particularly popular, and prosecuting jurors would not exactly make jury duty more so. No judge looks forward to holding anyone in the courtroom in contempt, much less a juror.

Still, the only plausible way to stop this practice cold is to establish a system of juror monitoring based upon sampling accompanied by consequences for those who violate jury instructions.

As the original Google mistrial showed, if a judge questions one juror about independent research, the judge can often get a feel for whether the jury as a whole has been conducting Internet research.  Courts should make this a standard practice; in each jury trial one juror should be randomly singled out and questioned at length about whether the jurors have been conducting Internet or other independent research. If jurors have been doing so, then sadly it seems necessary to make examples of a few juries in order to put the fear of prosecution into future jury pools. The very survival of the jury system of justice in the Information Age may depend on it.

While Google mistrials are a serious threat, technology should not be wholesale feared by the judiciary.  Much like information, technology simply needs to be managed appropriately.

United States District Judge J. Thomas Marten allowed a reporter to Twitter court proceedings in a trial of six “Crips” gang defendants taking place in his Wichita, Kansas courtroom. Twitter, a micro-blogging service, allows its users to send and read messages known as “tweets.” Tweets are text-based posts of up to 140 characters displayed on the author’s profile page and delivered to the author’s subscribers who are known as “followers.” Senders can restrict delivery to those in their circle of friends or, by default, allow open access. Users can send and receive tweets via the Twitter website, Short Message Service (SMS), or other external applications.

Judge Marten’s decision to allow the reporter to Twitter proceedings made sense. Tweeting does not involve video or audio recordings of witnesses or of the trial.  There is a big difference between allowing an audio or video broadcast of a witnesses testifying and allowing for reporters’ perception of the same testimony.  Allowing a reporter to tweet simply allows the reporter to speed up the journalistic process, as the reporter could always post impressions on a blog or other avenue during breaks in the trial.

Judge Martin reports that the permitted courtroom-twitters were a very positive experience for him, the reporter, and the public. Surprisingly, a good portion of what was “tweeted” wasn’t actually updates of the trial, but commentary on the architecture and appearance of the courtroom.

Unfortunately, reporters have not been the only tweeters in the courtroom. Jurors that tweet in their everyday lives will also likely try to continue to do so while serving on a jury.

As a recent example, a building materials company in Arkansas appealed a $12.6 million verdict, saying a juror’s Twitter messages sent before and after the trial showed that he was biased against the company.

Some of the tweets he sent during the trial read as follows: “oh and nobody buy Stoam.  It’s bad mojo and they’ll probably cease to exist now that their wallet is $12 million dollar lighter” and, the next tweet, “So, Johnathan, what did you do today?  Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Jurors also often send Facebook updates from the courthouse. This year in Cincinnati, potential juror Barry Price accessed Facebook from the courthouse and posted that he was “[S]itting in hell . . . aka jury duty[.]” Plaintiff’s counsel had a computer in the courthouse as well, found the update, filed a motion to excuse Mr. Price from the jury, and the court promptly granted the motion.

Constant vigilance in monitoring juror communications is another price of a jury trial. This presents a new challenge for trial lawyers, yet, as this case shows, one that can be easily met.

Be seeing you.

A Supreme Court Justice Writes the Preface to a Sedona Conference Journal on the Cooperation Proclamation

In a major coup for The Sedona Conference and electronic discovery specialists everywhere, Associate Justice Stephen Breyer of the United States Supreme Court has weighed in on e-discovery and written the preface to a special supplement of the Sedona Conference Journal, The Sedona Conference Journal, Vol. 10 Supplement, Fall 2009. Here is an excerpt from the Preface by Justice Breyer:

[The articles in this Supplement] suggest that if participants in the legal system act cooperatively in the fact-finding process, more cases will be able to be resolved on their merits more efficiently, and this will help ensure that the courts are not open only to the wealthy. I believe this to be a laudable goal, and hope that readers of this Journal will consider the articles carefully in connection with their efforts to try cases.

I commend everyone to read this special supplement, which will be released this week. I also join in Justice Breyer’s urging that you consider the articles carefully and try to apply these principles in your efforts to try cases. You might also want to give a copy of the Journal to the Bill E. Boie types down the hall from you. You know the ones; the old-school litigators who still think that discovery, especially e-discovery, is an exercise in hide-the-ball litigation tactics, and cooperation is what you pretend to do when the judge is looking. Anecdotal reports suggest that Bill E. Boie types are still in the majority, but, as Bob Dylan said, the times they are a-changin’.

The Case For Cooperation

The Sedona Cooperation Proclamation is a brief document of only two and a half pages. It is well summarized by its conclusion which states:

It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.

Although the proclamation is short, it contemplated the later creation of more extensive writings, including this Journal, and its lead article, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.) The article was written by a group of Sedona contributors led by Bill Butterfield, an attorney with Hausfeld LLP in Washington D.C. The executive editors were Richard G. Braman and Kenneth J. Withers, both of The Sedona Conference®. The contributing editors were John D. Luken, Dinsmore & Shohl LLP; Charles R. Ragan, Huron Consulting Group; Christopher M. Schultz, Perkins Coie LLP; and, Gregory B. Wood, Fulbright & Jaworski L.L.P.

The Case For Cooperation provides a Brandeis brief type of argument for cooperation in the field of discovery, particularly electronic discovery, where costs can otherwise quickly spiral out of control. It delineates two levels of cooperation:

Cooperation in this context is best understood as a two-tiered concept. First, there is a level of cooperation as defined by the Federal Rules, ethical considerations and common law. At this level, cooperation requires honesty and good faith by the opposing parties. Parties must refrain from engaging in abusive discovery practices. The parties need not agree on issues, but must make a good faith effort to resolve their disagreements. If they cannot resolve their differences, they must take defensible positions.

Then, there is the second level. While not required, this enhanced cooperative level offers advantages to the parties. At this level, the parties work together to develop, test and agree upon the nature of the information being sought. They will jointly explore the best method of solving discovery problems, especially those involving electronically stored information (“ESI”). The parties jointly address questions of burden and proportionality, seeking to narrow discovery requests and preservation requirements as much as reasonable. At this level, cooperation allows the parties to save money, maintain greater control over the dispersal of information, maintain goodwill with courts, and generally get to the litigation’s merits at the earliest practicable time.

The Case For Cooperation is a well research article with 159 footnotes. It provides an important reference of the laws and policies behind the Cooperation Proclamation. It is also a persuasive document to show to the Bill E. Boie types that their brand of zealous discovery, hurts, rather than helps their clients. Section five of the article shows the benefits of cooperation, focusing on the economic incentives and strategic benefits. It also explains what cooperative discovery is and is not:

Cooperation in the discovery context does not mean giving up vigorous advocacy; it does not mean volunteering legal theories or suggesting paths along which discovery might take place; and it does not mean forgoing meritorious procedural or substantive issues. Cooperation does mean working with the opposing party and counsel in defining and focusing discovery requests and in selecting and implementing electronic searching protocols. It includes facilitating rather than obstructing the production and review of information being exchanged, interpreting and responding to discovery requests reasonably and in good faith, and being responsive to communications from the opposing party and counsel regarding discovery issues. It is characterized by communication rather than stonewalling, reciprocal candor rather than “hiding the ball,” and responsiveness rather than obscuration and delay.

Cooperation defined in this manner is not only largely compelled by the attorney’s obligation to comply with legal rules, ethical obligations and the professional rules of conduct, but it also offers the client the benefits of creating and maintaining credibility with the court and the opposition, enhancing the effectiveness of advocacy, and minimizing client costs and risks.

ACT

The Proclamation calls for a three-part process to implement a new cooperative approach to discovery summarized by the acronym ACT. The first step is Awareness, the second is Commitment, and the third is Tools. The first step of consciousness-raising was accomplished by the Proclamation itself and related publicity and announcements. The Case for Cooperation, and other articles in the Journal and elsewhere, are part of the second step of Commitment. This is described in the Proclamation as “Developing a detailed understanding and full articulation of the issues and changes needed to obtain cooperative fact-finding.” The third step, Tools, is the final stage that will continue for many years. The Cooperation Proclamation describes this activity as:

Developing and distributing practical “toolkits” to train and support lawyers, judges, other professionals, and students in techniques of discovery cooperation, collaboration, and transparency. Components will include training programs tailored to each stakeholder; a clearinghouse of practical resources, including form agreements, case management orders, discovery protocols, etc.; court-annexed e-discovery ADR with qualified counselors and mediators, available to assist parties of limited means; guides for judges faced with motions for sanctions; law school programs to train students in the technical, legal, and cooperative aspects of e-discovery; and programs to assist individuals and businesses with basic e-record management, in an effort to avoid discovery problems altogether.

The Tools stage is really a Schools stage. Information alone is a fine tool, but it is nearly worthless unless you know how to use it. The indispensable knowledge of how to use tools, especially sophisticated tools created by others as Sedona here contemplates, takes instruction, perseverance, and time. As Bob Dylan said: “If your time to you Is worth savin’ Then you better start swimmin’ Or you’ll sink like a stone For the times they are a-changin’.”

The Bull’s-Eye View of Cooperation in Discovery

The next article in the Journal was written by Professor Steven S. Gensler of the University of Oklahoma College of Law. It is entitled The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363 (2009 Supp.). It discusses three different types of cooperation as illustrated in the graphic below and how they can all be part of an integrated strategy.

This article provides an academic, theoretical basis for the concepts of cooperation and related laws and policies. As Professor Gensler correctly notes:

The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a means for advancing their clients’ interests and not as a retreat from their duties as loyal advocates. As I have written elsewhere, the lawyers who default to battle mode in discovery – who fail even to consider whether cooperation might yield better results – are the ones who truly fail to serve their clients’ interests.

These default mode discovery-battlers remind me of Bob Dylan’s one song that mentions both lawyers and professors, Ballad Of A Thin Man:

You walk into the room
With your pencil in your hand
You see somebody naked
And you say, “Who is that man?”
You try so hard
But you don’t understand
Just what you’ll say
When you get home

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

…

You’ve been with the professors
And they’ve all liked your looks
With great lawyers you have
Discussed lepers and crooks
You’ve been through all of
F. Scott Fitzgerald’s books
You’re very well read
It’s well known

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

It seems like many trial lawyers today are in the position of the fictional Mister Jones in Dylan’s song. They know something important is happening with the computerization of society and explosion of electronic information, but they don’t really know what it is. They may attend seminars and CLEs, and some may try hard, but still not know what they’ll say when they get home. That in large part that depends on the quality of the CLEs, on whether the schools can really teach the tools.

Mancia v. Mayflower Begins a Pilgrimage
to the New World of Cooperation

The last article in the Sedona Journal on Cooperation discusses the first twelve cases to cite the Sedona Cooperation Proclamation. It was written by yours truly and is entitled Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.). The first opinion to cite and endorse the proclamation was Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D.Md. Oct. 15, 2008) by Judge Paul W. Grimm. The next eleven opinions to follow Grimm in Mayflower were:

Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. Nov. 21, 2008).
Gipson, et al v. Southwestern Bell. Tel. Co., 2008 U.S. LEXIS 103822 (D.Kan. Dec. 23, 2008).
Covad Communications Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. Dec. 24, 2008).
S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, Fed. Sec. L. Rep. P 95,045 (S.D.N.Y. Jan. 13, 2009).
William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. March 19, 2009).
Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. April 6, 2009).
Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D.N.J. May 19, 2009).
Dunkin’ Donuts Franchised Restaurants LLC v. Grand Cen. Donuts, Inc., 2009 WL 1750348 (E.D.N.Y. June 19, 2009).
Wells Fargo Bank, N.A. v. LaSalle Bank Nat. Ass’n, 2009 WL 2243854 (S.D.Ohio July 24, 2009).
In re Direct Southwest, Inc., Fair Labor Standards Act (FLSA) Litigation, 2009 WL 2461716 (E.D.La. Aug. 7, 2009).
Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009).

My article discusses these cases, most of which are already well known, and explains why the judges referred the parties to the Proclamation. I also show what the first cases have in common, aside from the obvious of uncooperative attorneys. These first cases primarily deal with technical disputes concerning form of production, metadata, and search protocols, mainly keyword lists. In my opinion, attorneys only squabble about such relatively inconsequential technical issues because they do not understand e-discovery. They know something is happening here, but they don’t know what it is.

They fight over form of production because they do not grasp that metadata is not really that important, and it is a waste of client money and court time to hide it. They also fail to do simple things, like decide what form of production they want when they make a production request, not afterwards. I have written about this competence issue before in Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules.

They fight over search protocols because they really have no idea how to find the relevant needles in the vast collections of electronic haystacks that their clients foolishly maintain. Since they do not know what to do, they just propose keyword search terms. They pretend like e-discovery search is the same as a Google or Westlaw search because that is all they know. They then engage in foolish games of competing keyword lists that quickly lead nowhere. I have also written about this before in Child’s Game of “Go Fish” is a Poor Model for e-Discovery Search.

The twelve cases that I write about are all sounding the chimes of cooperation, heralding the warriors whose strength is not to fight. As Dylan wrote in Chimes of Freedom:

Far between sundown’s finish an’ midnight’s broken toll
We ducked inside the doorway, thunder crashing
As majestic bells of bolts struck shadows in the sounds
Seeming to be the chimes of freedom flashing
Flashing for the warriors whose strength is not to fight
Flashing for the refugees on the unarmed road of flight
An’ for each an’ ev’ry underdog soldier in the night
An’ we gazed upon the chimes of freedom flashing.

Almost 100 Judges Have Endorsed
the Cooperation Proclamation

To date almost 100 judges have signed onto the Proclamation. I expect the one-hundredth will come soon and I will let you know who it is. In the meantime, here are the judges who have endorsed the Sedona Cooperation Proclamation so far:

ALABAMA Hon. John L. Carroll, Retired, Birmingham; Hon. William E. Cassady, U.S. District Court for the Southern District of Alabama, Mobile

ARIZONA Hon. Andrew D. Hurwitz, Vice Chief Justice, Arizona Supreme Court, Phoenix

ARKANSAS Hon. Jerry W. Cavaneau, U.S. District Court for the Eastern District of Arkansas, Little Rock

CALIFORNIA Hon. Robert N. Block, U.S. District Court for the Central District of California, Los Angeles; Hon. Susan Y. Illston, U.S. District Court for the Northern District of California, San Francisco; Hon. Elizabeth D. Laporte, U.S. District Court for the Northern District of California, San Francisco; Hon. Louisa S. Porter, U.S. District Court for the Southern District of California, San Diego; Hon. David C. Velasquez, Orange County Superior Court, Santa Ana; Hon. Carl J. West, Los Angeles County Superior Court, Los Angeles

COLORADO Hon. Morris B. Hoffman, Colorado 2nd Judicial District Court, Denver; Hon. Craig B. Schaffer, U.S. District Court for the District of Colorado, Denver

DISTRICT OF COLUMBIA Hon. Francis M. Allegra, U.S. Court of Federal Claims, Washington; Hon. Herbert B. Dixon, Jr., Superior Court of the District of Columbia, Washington; Hon. John M. Facciola, U.S. District Court for the District of Columbia, Washington; Chief Judge Royce C. Lamberth, U.S. District Court for the District of Columbia, Washington; Hon. Gregory E. Mize, Retired, Washington

FLORIDA Hon. Barry L. Garber, U.S. District Court for the Southern District of Florida, Miami; Hon. Thomas E. Morris, U.S. District Court for the Middle District of Florida, Jacksonville; Hon. Richard A. Nielsen, 13^th Judicial Circuit, Tampa; Hon. Thomas B. Smith, Ninth Judicial Circuit, Orlando

ILLINOIS Hon. Martin C. Ashman, U.S. District Court for the Northern District of Illinois, Chicago; Hon. David G. Bernthal, U.S. District Court for the Central District of Illinois, Urbana; Hon. Geraldine Soat Brown, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Jeffrey Cole, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Susan E. Cox, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Morton Denlow, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Peter A. Flynn, Illinois Superior Court, Chicago; Hon. John A. Gorman, U.S. District Court for the Central District of Illinois, Peoria; Chief Judge James F. Holderman, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Arlander Keys, U.S. District Court for the Northern District of Illinois, Chicago; Hon. P. Michael Mahoney, U.S. District Court for the Northern District of Illinois, Rockford; Hon. Michael T. Mason, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Richard Mills, U.S. District Court for the Central District of Illinois, Chicago; Hon. Nan R. Nolan, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Sidney I. Schenkier, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Susan P. Sonderby, U.S. Bankruptcy Court for the Northern District of Illinois, Chicago; Hon. Maria Valdez, U.S. District Court for the Northern District of Illinois, Chicago

INDIANA Hon. Kenneth H. Johnson, Marion County Superior Court, Indianapolis

KANSAS Hon. J. Thomas Marten, U.S. District Court for the District of Kansas, Wichita; Hon. James P. O’Hara, U.S. District Court for the District of Kansas, Kansas City; Hon. K. Gary Sebelius, U.S. District Court for the District of Kansas, Kansas City; Hon. David Waxse, U.S. District Court for the District of Kansas, Kansas City

LOUISIANA Hon. Eldon E. Fallon, U.S. District Court for the Eastern District of Louisiana, New Orleans; Hon. Sally Shushan, U.S. District Court for the Eastern District of Louisiana, New Orleans

MARYLAND Hon. Lynne A. Battaglia, Maryland Court of Appeals, Annapolis; Hon. Stuart R. Berger, Circuit Court for Baltimore City, Baltimore; Hon. Paul W. Grimm, U.S. District Court for the District of Maryland, Baltimore; Hon. Michael D. Mason, Montgomery County Circuit Court, Rockville; Hon. Albert J. Matricciani, Jr., Maryland Court of Special Appeals, Baltimore; Hon. Steven I. Platt, Retired, Upper Marlboro

MASSACHUSETTS Hon. Robert B. Collings, U.S. District Court for the District of Massachusetts, Boston; Hon. Timothy S. Hillman, U.S. District Court for the District of Massachusetts, Worcester; Hon. Allan van Gestel, Retired, Boston

MISSISSIPPI Hon. Jerry A. Davis, U.S. District Court for the Northern District of Mississippi, Aberdeen

NEVADA Hon. Elizabeth Gonzalez, Nevada Eighth Judicial District Court, Las Vegas

NEW JERSEY Hon. Katharine S. Hayden, U.S. District Court for the District of New Jersey, Newark; Hon. John J. Hughes, Retired, Trenton

NEW YORK Hon. Leonard B. Austin, New York Supreme Court, Commercial Division, Mineola; Hon. Carolyn E. Demarest, New York Supreme Court, Commercial Division, Brooklyn; Hon. Helen E. Freedman, New York Supreme Court, Appellate Division, New York; Hon. Marilyn D. Go, U.S. District Court for the Eastern District of New York, Brooklyn; Hon. Richard B. Lowe III, New York Supreme Court, Commercial Division, New York; Hon. Frank Maas, U.S. District Court for the Southern District of New York, New York; Hon. Andrew J. Peck, U.S. District Court for the Southern District of New York, New York; Hon. David E. Peebles, U.S. District Court for the Northern District of New York, Syracuse; Hon. Shira A. Scheindlin, U.S. District Court for the Southern District of New York, New York; Hon. Lisa Margaret Smith, U.S. District Court for the Southern District of New York, New York; Hon. Richard J. Sullivan, U.S. District Court for the Southern District of New York, New York; Hon. Ira B. Warshawsky, New York Supreme Court, Commercial Division, Mineola

NORTH CAROLINA Hon. Albert Diaz, North Carolina Business Court, Charlotte; Hon. John R. Jolly, Jr., North Carolina Business Court, Raleigh; Hon. Ben F. Tennille, North Carolina Business Court, Greensboro

OHIO Hon. William H. Baughman, Jr., U.S. District Court for the Northern District of Ohio, Cleveland; Hon. John P. Bessey, Franklin County Court of Common Pleas, Columbus; Hon. Richard A. Frye, Franklin County Court of Common Pleas, Columbus; Hon. Thomas H. Gerken, Hocking County Common Pleas Court, Logan; Hon. George J. Limbert, U.S. District Court for the Northern District of Ohio, Youngstown; Hon. Michael R. Merz, U.S. District Court for the Southern District of Ohio, Cincinnati; Hon. Kathleen McDonald O’Malley, U.S. District Court for the Northern District of Ohio, Cleveland

OKLAHOMA Hon. Robert E. Bacharach, U.S. District Court for the Western District of Oklahoma, Oklahoma City; Hon. Robin J. Cauthron, U.S. District Court for the Western District of Oklahoma, Oklahoma City; Hon. Stephen P. Friot, U.S. District Court for the Western District of Oklahoma, Oklahoma City

OREGON Hon. Dennis J. Hubel, U.S. District Court for the District of Oregon, Portland

PENNSYLVANIA Hon. Linda K. Caracappa, U.S. District Court for the Eastern District of Pennsylvania, Philadelphia; Hon. Lisa P. Lenihan, U.S. District Court for the Western District of Pennsylvania, Pittsburgh; Hon. Christine A. Ward, Allegheny Court of Common Pleas, Pittsburgh

TENNESSEE Hon. Diane K. Vescovo, U.S. District Court for the Western District of Tennessee, Memphis

TEXAS Hon. Martin Hoffman, 68^th Civil District Court, Dallas; Hon. Martin L. Lowy, 101^st Civil District Court, Dallas; Hon. Nancy S. Nowak, U.S. District Court for the Western District of Texas, San Antonio

WASHINGTON Hon. James P. Donohue, U.S. District Court for the Western District of Washington, Seattle; Hon. Barbara Jacobs Rothstein, Retired, Seattle; Hon. Karen L. Strombom, U.S. District Court for the Western District of Washington, Seattle

WISCONSIN Hon. Aaron E. Goodstein, U.S. District Court for the Eastern District of Wisconsin, Milwaukee

Conclusion

This is just the beginning of what I predict will be exponential growth in judge endorsements. I suspect this will go viral within twelve months or so. Do not be left out on this one. Create a new more cooperative identity when it comes to discovery, especially e-discovery. As Bon Dylan said in It’s Alright, Ma (I’m Only Bleeding): “He not busy being born, is busy dying.”

So, get your white-hat on now. Learn how to play the new game of cooperative discovery today, or be branded as a bad guy tomorrow. How many rulings do you think will go your way in front of a proclamation sign-on judge who thinks you are a non-cooperator? As Dylan said in Drifter’s Escape:

“Oh, help me in my weakness,” I heard the drifter say, As they carried him from the courtroom And were taking him away. “My trip hasn’t been a pleasant one And my time it isn’t long, And I still do not know What it was that I’ve done wrong.”

Well, the judge, he cast his robe aside, A tear came to his eye, “You fail to understand,” he said, “Why must you even try?” Outside, the crowd was stirring, You could hear it from the door. Inside, the judge was stepping down, While the jury cried for more.

It is really not that hard to cooperate. Attorneys do it all of the time in areas where they know what they are doing. Pre-trial stipulations come to mind, as do evidence stipulations, not to mention mediations and other forms of ADR. But it is hard to cooperate on electronic discovery when you are not comfortable with the field and do not know what you are doing. For instance, you may not know if a particular issue or concession is important or not. When you do not know, you tend to treat everything as critical. Something is happening here, but you don’t know what it is. You are afraid of making a mistake that will cost your client. You are afraid of looking stupid. For those reasons, you object to everything your adversary wants. But in the process, your obstructionist behavior costs your client way more than any mistake could. It may even cost your client the whole case. The judge may ask you to explain, and you can’t, because you only know that something is going on, but not what it is. What do you have left then, when your reputation is gone? “The answer, my friend, is blowin’ in the wind, The answer is blowin’ in the wind.”

The path to cooperation is illuminated by competence. That is why the third phase, the Tools phase, is a Schools phase; it needs to include a comprehensive educational program. If a lawyer does not understand the e-discovery issues they are facing, then they should bring in special counsel who does. That is an ethical imperative. You have to know what is going on. When attorneys have the knowledge they need to understand the full dynamics of the issues, then, and perhaps only then, does cooperation come easily. That is why I leave you with this parting wish, that you may find the knowledge to stand upright, be strong, and cooperate. And, as the great Bob Dylan wished for us all:

May you grow up to be righteous,
may you grow up to be true.
May you always know the truth
and see the lights surrounding you.
May you always be courageous,
stand upright and be strong.
May you stay forever young.