Magistrate Judges in Orlando Share Their Views on e-Discovery

I attended the Federal Bar Association’s e-Discovery CLE in Orlando on November 17, 2006.  The final portion of the seminar featured a panel discussion by Magistrate Judges Spalding, Glazebrook, and Baker.  Thay had many comments on e-discovery, including these 10 points:

1.   All judges agree that David Baker is the main “techie” on the bench in the Middle District and defer to his expertise in this area.  All three Judges, will, of course, hear these issues, and do.  They are beginning to hear more and more of these disputes. 

2.  Judge Baker is of the opinion, and Glazebrook and Spalding agree, that attorneys “need to grill your client” before the meet and confer session.  Further, you need to “talk to their techies” before the conference.  They thus follow Judge Scheindlin in Zubulake. Judge Glazebrook said that it was not sufficient simply to have the parties’ respective techies speak with each other.  The lawyers have to participate in the dialogue. Judge Baker indicated that lawyers have to learn “tech speak.”  The inability to do so is not an acceptable excuse. 

3.  Judge Glazebrook also mentioned that you may need to have a computer tech expert at the meet and confer meeting and emphasized that definitely lawyers should meet with the clients’ IT personnel before the meeting.

4.  All three judges agreed that it is better to bring up all electronic issues as soon as reasonably possible.  They would prefer that the parties not wait until there is a particular discovery request or dispute.  If it is possible to frame an issue, then it is better to come to the magistrates early for review and consideration.  This is the kind of thing that can be brought up in the initial pretrial conference and no pending motion is required.

5.  Judge Baker indicated that he thought that the recent revisions to Rule 34(b) probably did mean that “native file format” production is the default mode.  He did, however, qualify that opinion by stating that it is based upon proof of “usual course of business” for a particular business and upon the particular time frames involved.  In other words, what is the usual course of business, what do they do with data on a day to day basis, as compared to after a month or a year.

6.  All the judges expect that the most difficult areas in e-discovery in the future will involve the so-called “David and Goliath” type of cases and the “M.A.D.” cases between two large companies.

7.  As to clawback agreements and attorney-client privileges, the judges have not yet discussed this among themselves.  If you are going to ask for a clawback agreement, then you need to do so at the beginning of the case, not wait until the end of the case.  If you wait until the end, the judges are likely not to provide it.

8.  Judge Glazebrook indicated a willingness to actually sign stipulated clawback orders, but Judge Baker said he will not.  Same applies to confidentiality orders.

9.  The judges all seemed to agree that the safe harbor provisions were intended to apply to routines before litigation, not after.  All seemed to agree that it wasn’t much of a safe harbor.

10.  They have not yet prepared a new form to use for case management reports, but expect they will soon.

Recent Akerman e-Discovery Victory!

Optowave v. Nitikin: full copy of the Spoliation Order, Case No. 6:05-cv-1083-ACC-DAB, Doc. 90 (M.D. Fla. November 7, 2006).  Now published in Westlaw at 2006 WL 3231422 and Lexis at 2006 Lexis 81345. We call this the Midnight Hacker case. Akerman represented the Plaintiff in a contract dispute. Defendant Nitikin, a computer expert, tried to fool the court and plaintiff with a story of unknown computer hackers breaking into his network in the middle of the night and erasing files, and missing hard drives.

Magistrate David Baker, who is known to be adept in computers himself, found the defendant’s stories incredible. Magistrate Baker also found that the preservation letter, sent out by Plaintiff’s counsel (an Akerman attorney), put the defendant on notice that he should not have reformatted a key employee’s hard drive when he left the company without first preserving his emails and documents. The Court found that negligence alone was not sufficient for a severe spoliation sanction of default, that bad faith was also required. But the Court found evidence of bad faith in this case from the intentional destruction of key emails, and for this reason entered a “practically dispositive” adverse inference, that the missing emails proved the plaintiff’s case.

Basic idea of e-Discovery Team

Litigation attorneys today must not only understand the law and the facts of a dispute, but also their clients’ computer systems and data retention practices. The failure of otherwise excellent trial lawyers in this area has led to some spectacular losses. The change in the Rules, and recent case law, especially Zubulake, have only intensified the problem.

If a company is constantly involved in litigation, it must solve this problem, fast. My solution is the e-Discovery Team.  We are a special group of techno-geek lawyers who help large organizations form internal e-discovery response teams, and serve as national e-counsel to partner with your local counsel and make sure that e-discovery is done right.

This is my Blog, written for e-discovery teams everywhere.