Report on a West-Kroll’s “A to Z” E-Discovery Workshop, and a Proposal for a Pure Question and Answer Format

I attended the West Legalworks e-discovery A-Z workshop in Miami last week. They are day and a half long events, so I cannot summarize the whole thing, but I can report on the parts I found most interesting. West Legalworks and Kroll Ontrack have been putting these on all over the country for several years, using different faculty in different places. I attended this CLE in Atlanta a few years ago as a care-free student, and now this one as a teacher. Like most of the faculty, I stayed for the full workshop. Both have been good events where I have learned a lot and met some great people.

The outside counsel who chaired the event, Browning E. Marean, is also the chair of DLA Piper’s e-Discovery Team. He now leads most of these A-Z workshops. Browning is an excellent teacher, who combines both dry wit and sage advice (they usually go together). He claims to have an ex-navy man’s vocabulary, which he says is invaluable in email review, but we never heard any of that. Indeed, in spite of my participation and Dilbert tie, it was a very proper Minnesota production. Browning’s co-chair was Keith D. Mobley, an attorney consultant for Kroll Ontrack in Atlanta. Keith’s goal was to make the CLE responsive to the participants’ needs. Thus, although the whole A-Z alphabet was advertised, most of the presenters tried to customize their talks on the fly to focus on the letters, the issues, that people seemed to be most interested in.

Proposal for a Total Q&A Workshop

In my opinion, and I know that Keith agrees, this is how e-discovery seminars should be run, even though it is more difficult for some presenters. In fact, I would like to try taking this approach to an extreme, and set up an event comprised entirely of questions and answers around a specified topic or topics. The presentations would consist entirely of answers to questions. Sometimes the answers would be long, sometimes short. One thing would naturally lead to another. The whole atmosphere would encourage questions, and discourage lectures. It is kind of like a Foo Camp or unconference which is defined by Wikepedia as “a facilitated, face-to-face, and participant-driven conference centered around a theme or purpose.”

This method would empower the attendees. They would set the agenda. They would get the precise information they want, when they want it. (No specific cases discussed, of course, as that comes too close to legal advice.) This approach would challenge the presenters, which is a good thing. It would keep them fresh and on their toes. It would also spare presenters the frustration of talking about issues that people are not really interested in. The different presenters would, of course, have to have varying, complementary areas of expertise so that a variety of different questions could be addressed.

Any vendors or educators out there want to sponsor such an event? If so, let me know and I will help you make it happen. With the right faculty, and the right students, who would need to have at least similar interests and backgrounds, it could be a great success. In fact, it could spawn a whole new type of spontaneous, fully interactive legal education event, one that is completely focused on the special interests and needs of the attendees. Right now, the sponsors of events are just guessing, hoping they get it right. So how about it? Send me an email and lets try it.

Rules and Pre-Litigation Triggers

The first presentation was called “Why Digital Is Different?” The lead faculty on this topic was John M. Barkett of Shook, Hardy & Bacon, who was assisted by Jim Caitlan of TrialGraphix (Kroll), and Sonya Ann Strnad of Holland & Knight. John began by reviewing the new rules, but only after first asking if people really wanted to hear about that. Somewhat surprisingly, they did, which tells me many had not attended an e-discovery CLE before.

The rules presentation was all pretty straight forward, except for one statement that I found controversial. John stated that the phrase “absent exceptional circumstances” in “safe-harbor” Rule 37(e) means “absent prejudice to the requesting party.” I am not so sure I agree with that, and perhaps I did not hear him correctly. I think the rule can also protect when there is prejudice, if routine good faith operation of an ESI system is shown. In fact, in most cases where the rule will be used as defense to a motion for sanctions, the party moving for sanctions will claim prejudice. See eg. my prior discussion of the rule in connection with Petcou v. C.H. Robinson Worldwide, Inc. 2008 WL 542684 (N.D. Ga., Feb. 25, 2008).

If proof of prejudice takes away the protection of the rule, then it provides no protection at all, which is, I know, what many people say. Still, I respectfully disagree. The rule must have a meaning. I think the “absent exceptional circumstances” language is just there to be sure the rule does not provide protection to intentional wrongdoing, gross negligence, or bad faith. It is just general catch-all language, no doubt added as a compromise by the committee that wrote this rule. This “absent exceptional circumstances” is just intended to make sure that judges understand they have discretion to disregard the rule if the facts just do not smell right for any number of reasons. In fact, I think the caveat “absent exceptional circumstances” is largely meaningless, in view of the good faith requirement already in the rule, and the host of other methods by which a requesting party can obtain sanctions outside of the rules. As John pointed out in his presentation, there are many ways for a judge to impose sanctions under the common law where Rule 37(e) would arguably not apply.

This panel also discussed the tricky issue of when a pre-litigation duty to preserve may be triggered. They made an interesting point concerning the dangers of over use of attorney work product legends on pre-litigation documents. Once you start putting those legends on emails and other documents, or otherwise claim that documents are protected from disclosure by the litigation work product privilege, then you also establish a clear point in time at which litigation is anticipated. This triggers the duty to preserve. Therefore, logical consistency demands that when you start claiming work product in connection with anticipated litigation, you should at the same time also issue a litigation hold to the impacted parties. There may be some exceptions to this. For instance, you may know that litigation is likely, but do not yet know the identity or locations of the key players, and so cannot send out a hold notice. Still, as a general rule, this is a good idea. It is hard to argue that the work product doctrine applies, but not the duty to preserve. That is a classic example of wanting to have your cake and eat it too.

The first session concluded with John describing the facts of Qualcomm v. Broadcom in detail. See: Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) (one of several relevant decisions in this case). Throughout the next day and a half, the Qualcomm case came up again and again. The impact of Qualcomm is so important that I will devote all of my next blog on it, and so will skip over these discussions for now.

Drawing Drama from the Disk

This next session was led by William F. Hamilton, the chair of Holland & Knight’s e-Discovery team. Helping him were John M. Barkett and Jim Caitlan again, along with Miami lawyer Joel B. Rothman. Bill is quite adept at teaching these subjects as he is an Adjunct Professor at the University of Florida School of Law. In this position he taught one of the first classes in the country on e-discovery. The panel noted that it was “almost malpractice not to use checklists” while also pointing out the limits of these tools, as I did in ABA Litigation Section Reacts to the Qualcomm Case and Recommends e-Discovery Checklists.

Bill had a good presentation of forensics, one of his favorite subjects and mine. Professor Hamilton is of the philosophy that forensic images of the hard drives of the computers of the key players should be done in almost every case, but especially in cases involving departed employee non-compete and trade secret cases, or in employee integrity cases. I agree with Bill that forensic images should be made in these specialty cases, but respectfully disagree about doing it in every case, just as a precautionary measure. Instead, I am only inclined to make forensic copies when special circumstances indicate there is a need to do so, such as the cases Bill mentioned, or in others when you know or suspect an employee has deleted relevant files. I have discussed my rationale for this several times, including in two of my favorite blogs, Sherlock Holmes in the Twenty-First Century and “Book ‘em Danno”.

Jim Caitlan also spoke about the alternate method of preserving evidence by making a ghost copy. Here you copy all of the active files and programs on key players computers onto new hard drives. You then remove the original hard drives and replace them with new ones. The key players never know the difference, because all of their active files and programs remain in place. But you can then take the original hard drives off to the forensic lab for study - deleted files, slack space and all.

Noble Eightfold Path

Sonya Ann Strnad led the next presentation called the First Steps on the Path to Production. She was assisted by Derek A. Krabill, a technology consultant with McDermott Will & Emery, and Michael J. Ryan, a good plaintiff’s attorney in Fort Lauderdale. Sonya had a very clever presentation explaining the standard EDRM model for e-discovery using a spiritual analogy. It makes my prior sport’s analogy blog, What Game Does an e-Discovery Team Play? seems pretty base! She adopted the language of Buddhist philosophy to set forth the “Eightfold Path to e-Discovery Enlightenment.” Of course, in Buddhism, before you get into the intricacies of the Eightfold Path, you must first master the “Four Noble E-Discovery Truths.” They are, in Sonya’s words:

1. That all e-discovery is painful;
2. That the cause of this pain is cost, time, and complexity of ESI;
3. That the pain can be minimized; and
4. That the way to minimize pain is the R.26 conference.

I am not so sure that a Rule 26 Conference is really as powerful as all that, but it is a good start to alleviate unnecessary e-discovery suffering. Sonya then correctly notes that the Eightfold Path of e-Discovery, like Buddhism, emphasizes “right thinking”and “right action.” In my world, this means only preserve and collect what you really need. Do not be attached to the rest. Sonya then described the eight steps on this path:

1. Determination of duty to preserve
2. Identification of issues/key personnel
3. Issue/maintain litigation hold
4. Identify sources of relevant data
5. Preserve relevant data
6. Collect relevant data
7. Process relevant data
8. Review and produce relevant data

It was a very clever analogy. A few details that I remember include Sonya’s suggestion that the support staff of key players also be sent a hold notice. They may keep e-files of relevance that their boss does not know about. Sonya also suggested keeping a non-privileged log of all preservation and collection activities. This log can later serve as a method to prove the reasonability of your efforts, and protect you from a Qualcomm-like situation. Browning mentioned three software programs that can help you to do that: Atlas, Exterro, and Autonomy.

Sonya then discussed several landmark cases, including Metro. Opera Ass’n v. Local 100, Hotel Employees & Rest. Employees Int’l Union, 212 F.R.D. 178, 222 (S.D.N.Y. 2003). She explained that this case stands for the proposition that:

Counsel must inform clients:
-of the existence of the duty to preserve;
-duty to preserve encompasses all “documents” potentially relevant to the dispute; and
-definition of “document” encompasses hard copies and electronic documents, as well as drafts and nonidentical copies.

Teams, Costs, and Conferring

Next was my presentation on “e-Discovery Teams,” where I got a chance to show off my new Apple Keynote software, and its unique special effects. My thanks to panelists Alvin F. Lindsay of Hogan & Hartson and Derek Krabill for helping me on this. During the question period Browning wryly observed that I forgot to include an essential member of any e-discovery team — opposing counsel. It was said half in jest, of course, but his point of the necessity to communicate with opposing counsel is a good one. In many cases, greater transparency and cooperation can lead to dramatic cost savings and efficiency in e-discovery.

The next presentation was “What’s This Going to Cost?” led by Browning Marean, who says he loves to follow my PowerPoint specials. Browning showed us the spreadsheet template on e-discovery costs that he developed. His good advice was to avoid using simple brute force review, where you read everything, by using concept search, clustering and context review techniques. He said our goal should be to review 300 docs per hour, not just 10. This is possible by cluster type review where you more easily know what does not have to be read. The key to cutting costs is to reduce review time. Also, the careful use of contract lawyers can help. In his experience, contract lawyer costs range from between $43 to $150 per hour, per reviewer. In India, the price per contract lawyer can come down to between $25 to $35 per hour, but Browning does not know of any client who will use Indian lawyers for review. When contract lawyers are used, even domestic ones, top end attorneys should still be involved in review to cull down the data universe, and focus on the key subjects, players, and language.

As a practice tip, Browning suggested the request of production of the PowerPoints that might pertain to the dispute, especially ones sent to the Board. They are usually simple enough for anyone to understand and sometimes have startling admissions. Browning also suggested the use of checklists and established procedures as typically employed in project management software. The use of such tools is largely driven by the fear of malpractice. It is all to easy to forget to do something. Also, Browning pointed out how important it is for law firms and corporations to have a strong internal education program. This e-discovery training should be for both litigation and transactional lawyers. Transactional lawyers need to understand litigation-hold duties too, because they see the problems that are brewing. By the time a dispute gets referred to a litigation attorney, the time for a hold may be long past.

The next session on “Meet and Confer” was led by Joel Rothman, with strong assistance by Ervin A. Gonzalez, a Miami plaintiff’s lawyer and member of the Florida Bar’s Board of Governors, and Alvin Lindsay. The panel began by quoting Judge Waxse who likes to say that: “Lawyers are like exotic particles. They change behavior when observed.” Judge Waxse, a District Court judge in Kansas City well known for his e-discovery expertise, purportedly orders lawyers who cannot reach agreement in Rule 26(f) conferences to go back and hold the conference again, but this time to videotape the whole thing. If they still cannot reach an agreement, then they are supposed to come back with motions and file the video tape. So far, no one has ever returned to file a motion with videotape. This always resolves the problem.

The panel agreed that complex cases require a series of meet and confers, not just one meeting. They call this the Big Bang versus Serial approach to meet and confer. They also suggest that you send an agenda in advance, and that you come to the meeting with a very specific and detailed plan. Sometimes you may even want to bring an IT expert, if you need it. They suggest that you consult with the expert if and when tech issues come up, but that you do so outside of the room. They also suggest you always discuss a preservation plan in order to protect your client. This allows you to set up waiver and estoppel arguments.

Mike Ryan added that it is important to build credibility at the meet and confer. He thinks that is the most important aspect of the conference. Everyone’s credibility will be tested, so be careful what you say and what you promise. To that end, the panel suggested that you bring a note taker to make an informal record of what is said and done.

Collecting and Processing

The next day began with “Bringing in the Bytes” led by Jim Caitlan, with assistance by Derek A. Krabill, and Robin A. Peterson, a top paralegal and e-discovery expert for Baker & Hostetler. Jim calls the e-discovery experience a kind of “body cavity search” of the company to try and locate all relevant ESI. He points out that it is easy to make mistakes and miss ESI, and then later be accused of spoliation. He recommends that you start the search process by educating in-house IT as to what needs to be accomplished and why. You need to explain the Rules and the problems.

Derek said that in his practice he sends out a general questionnaire first to corporate IT, and then has a phone conference with them. He says the call is almost like a deposition, but friendly. Derek observed that IT tends to provide information that minimizes their work, and so they have to be carefully supervised. In Jim’s experience, a group meeting with multiple IT personnel works best because they tend to be more committed and show off their problem solving abilities to their peers. He thinks that you are more likely to come out of a group meeting with a detailed plan of action than you are a series of one-on-one meetings. Jim suggests that the meeting be facilitated by a tech-lawyer of the e-discovery consultant.

The panel emphasized again the importance of documenting all decisions throughout the e-discovery process. In this way, you can later defend your actions as reasonable in situations where a mistake is made, ESI is overlooked, etc. Jim stated that his company, Kroll, always tries to preserve backup tapes, but I suggested that is not what the law requires. In my opinion, you only have to preserve backup tapes if there is some reason to believe that relevant ESI may only be available there. I pointed out Judge Scheindlin’s prior holding in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) on that, as I have done several times in this blog. See eg. Rule 37 and the Supreme Court on Document Destruction and Should a Litigation Hold Include Backup Tapes? But See Toussie v. County of Suffolk, 2007 WL 4565160, at *8 (E.D.N.Y. Dec. 21, 2007). Toussie incorrectly cites to Zubulake to support the position that “the law is now clear that any backup tapes containing the documents of a key player must be preserved and accessible”. This incorrect statement of the law was recently repeated in Treppel v. Biovail Corporation, 2008 WL 866594 at *12 (S.D.N.Y., April 2, 2008) which for authority cited and quoted Toussie. 

The next presentation was called “Data Filtering, Processing, Review and Production: How it Works and Why You Need It” by Sonya Strnad, Jim Caitlan, and Michael Ryan. Sonya noted that between 65% to 90% of data is usually removed during the culling/de-duping process. This is a very important statistic. In my view we all need to be much more aggressive in ESI culling in order to get control of run away e-discovery costs. The panel had many very good practical tips in this area not previously mentioned, such as:

1. keep a good accounting to be sure all files are processed;
2. know what kind of files cannot be handled by the processing software you are using, and be sure the software creates exception reports to advise you of any files not included;
3. ask  your vendor to tell you what types of ESI can and cannot be properly processed by their software; and,
4. when projecting the time it will take to accomplish certain tasks and make production, be sure to build in time to deal with currently unforeseen problems because some will always crop up.

Jim responded to a question as to when concept search software should be used. He said that it becomes cost effective when at least 20,000 to 30,000 documents are involved. Then, concept searches and the clustering of documents can facilitate review enough to pay for the expense of the extra software charges. Jim stated that Kroll’s product, by which I think he meant Ontrack Firstview, is relatively inexpensive to use for that size of review, between $2,000 to $3,000. The extra expenditure should more than pay for itself in reduced review time, and it will uncover additional relevant data. Along those lines, Browning reported on a new software search tool by Synergence that allows you to create a synthetic document with language that you would like to find. It then goes out and searches for the smoking gun or silver bullet that you would like to find in the document set. You can also do the same thing with actual documents you have already found that are the most relevant: the “hot” documents.

Sonya proposed that you try and reach agreement with the requesting party to only produce near-duping documents, and to allow the receiving party to request the screened near-duped documents later upon request. Alternatively, the producing party can dedup and then repopulate and produce. Browning observed that this would be called de-deduplicating, and is the electronic equivalent of paper document dumping. It forces the requesting party to also use deduping software, or incur excessive costs to review all the duplicative documents. For that reason, a requesting party should want to avoid repopulation, and should be pleased to receive a deduped set, but often they do not. They tend to be suspicious that relevant documents have been withheld. Requesting parties should be told about the deduping process in advance of production. Then with disclosure, they should agree to the mutually beneficial process, especially if they have the right to go back and request specific deduped documents if that is later needed.

Sleeping Well at Night

The closing presentation by John Barkett was entitled “What’s Keeping Us Up at Night?” He was helped by Jim Caitlan, Bill Hamilton, and Keith Mobley. John agreed with my prior assertion on the law governing backup tapes, that there is no duty to preserve backup tapes, unless you know that relevant data may only exist there. But he correctly noted that this requires quick investigation into the key players procedures, to see if there have been any deletions of ESI that might require backup tape preservation. This need for rapid lawyer and client response keeps a lot of us up at night. John also reviewed his recent Ethics paper and a host of relevant case law. John concluded by noting how the proposed amendment to Rule 502 (Evidence Code regarding privilege waiver) was passed by the Senate in early 2008. Here is the text of the proposed Rule change:

PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure made in a federal proceeding or to a federal office or agency; scope of a waiver. - When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent disclosure. — When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed. R. Civ. P. 26(b)(5)(B).
(c) Disclosure made in a state proceeding. — When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling effect of a court order. — A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.
(e) Controlling effect of a party agreement. — An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling effect of this rule. — Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if
state law provides the rule of decision.
(g) Definitions. — In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

John predicts it will be passed by the House soon, and will go into effect before years end in 2008. I certainly hope he is right about that. It should help on the privilege waiver problems that worry many an e-discovery lawyer.

Still, the best advice on how to avoid sleepless nights is to study what Qualcomm’s lawyers did in the Broadcom case before they got fired and sanctioned, and then do the opposite. Like the chair of the FTC’s e-discovery team, David Shonka, said recently at the Harvard Club lecture, it’s really quite simple: “don’t lie, don’t hide things, and don’t make promises you can’t keep.” To that I would add, if you are in doubt about something, seek the advice of an independent counsel who not only has high integrity, but also strong knowledge of the governing rules of ethics. For instance, in my firm we have a chief ethics officer. The Florida Bar also operates an anonymous ethics hot-line for lawyers to seek advice. Perhaps your state has something similar? It is a good idea to consult with reliable sources such as this whenever you are in doubt.

Online Reference and Thirty One More e-Discovery Cases

I find myself using the search feature of this blog more and more these days. It is the fifth box down on the right, and only searches the contents of this blog. It works very well. I need this search feature, not only because my memory is limited, but because the content of this blog has become quite large. I was surprised to notice that I have somehow written and posted over 100 essays in the past year and a half. They cover most of the important e-discovery cases and trends since I started this blog in the Fall of 2006. Some of the major cases like Qualcomm end up with multiple blogs. The search box helps me to find them all fast, and it has become a useful research tool for my daily legal practice.

So I got to thinking what I might do to make this blog a more useful research tool for everyone? The answer was to post my collection of favorite e-discovery cases, most of which have not been previously included in the blog because they preceded it in time. So my blog for this week is my list of favorite cases, along with a brief summary of each case. I include this case digest in my CLE handouts anyway, so I thought it might be helpful to make them available in electronic, searchable form.

I start off with a few particularly interesting cases, some of which you may not have seen before, but most of which are classics. Then, I switch to an alphabetical list of the better known e-discovery cases. You are welcome to copy and paste this into your own private case lists. If you redistribute, please just mention that I wrote the case descriptions. If you want to send me additional cases with short descriptions following this style, I will go back and include them in this blog, but I cannot preserve your copyrights, since it may end up in my next book. I will, however, mention you as a contributor to the case list. If you have any other ideas to make this blog a more useful reference, please let me know.

My website FloridaLawFirm.com is also a good reference, especially the Links Page. These links are all e-discovery related and are a good source of information. I just updated this list and included several new sites that friends suggested. Send me an email if you have suggestions.

You will also want to try out the Google Custom Search Engine at the beginning of each page of FloridaLawFirm.com. This specialized search tool not only includes all of my webs, but that of several other e-discovery webs. The Google powered search is limited to the specified webs, including, among others, the excellent reference webs by Kroll, Applied Discovery, KL Gates, EDRM.net and Law.com. I also include a few general law sites from West and Cornell University, and even Wikipedia, Webopedia and others should you have tech-related questions. The specialized search function set up at FloridaLawFirm.com is a good way to find e-discovery information, including hundreds of e-discovery cases, without wading through the entire Internet. It tends to find what you want without too many false positives, thus saving valuable time.

Finally, after filling your head with so much law, you may want to check out the new comic relief added last month to FloridaLawFirm.com. There is now a YouTube video at the bottom of every page, including my official attorney resume page, where I include a link to my own YouTube video. No doubt another first of dubious distinction. Sorry, but I had to delete the music from my webs after Sonific.com closed down, but look for a new music service coming soon.

RCL’s Favorite e-Discovery Cases

Ignorance of computers is no longer a viable excuse. See: Martin v. Northwestern Mutual Life Insurance Company, 2006 WL 148991 (M.D Fla. Jan. 19, 2006). Plaintiff, a trial lawyer, and his counsel, are sanctioned for failure to produce only paper records, and plead “computer illiteracy” as to the voluminous additional electronic records that were eventually found on the plaintiff’s office computers. The District Court held that the attorney’s “claim that he is so computer illiterate that he could not comply with production is frankly ludicrous.”

My favorite “war–story” case, which we call the Case of the Midnight Hacker. Optowave Co. Ltd. v. Nitikin, 2006 WL 3231422 (M.D. Fla. November 7, 2006). The Akerman case, where Jim Foster was the trial lawyer, shows how e-discovery can be used as a case-winning tool in commercial litigation. Here defendant Nikitin, a citizen of Russia living and doing business in central Florida, produced very few emails. Our client, Optowave, a Korean corporation, moved to compel. Defendant tried to explain the missing emails by claiming that a computer hacker broke into his network at night and deleted everything. We challenged the veracity of that story and moved for sanctions for spoliation. There was then a full day evidentiary hearing on our motion where we offered forensic evidence and other proof of spoliation by intentional, bad faith destruction of evidence. Magistrate Judge Baker did not believe defendant’s midnight-hacker story. Our motion for sanctions was granted, fees were awarded, and an all-important adverse inference was granted that the missing emails would have contradicted defendant’s version of the communications. In the ensuing bench trial, this became a near conclusive presumption on a key fact establishing liability. Proof of liability in this case without the spoliation sanctions would have been very difficult, if not impossible, since our clients spoke little or no English. In fact, Optowave did prevail after a one week trial and a money judgment was entered against Nikitin, which was ultimately paid.

The most famous and important e-discovery case of all, Zubulake:

Zubulake I, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, (S.D.N.Y. 2003). This first opinion addresses the legal standard for determining the cost allocation for producing e-mails contained on backup tapes. Basic facts of this case: the plaintiff, Laura Zubulake, 44, was the director of the bank’s Asian shares sales desk in New York with an annual salary of $500,000. She sued the Swiss financial giant for gender discrimination and illegal retaliation. In her words, noted in her personal comment to this blog below (which caused me to revise this case description), she complained of: “denial and removal from professional responsibilities, exclusion from business outings, being belitted and generally treated different from my male colleagues.” During e-discovery she found emails from her employer confirming these allegations. The supervisor, and many of his colleagues, tried to cover up by deleting emails and denying everything. Judge Scheindlin and the jury did not buy it, and ultimately Zubulake was awarded Ten Million Dollars in pay, and Nineteen Million in Punitive Damages, for a total award of $29,000,000.00.

Zubulake III, Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) This decision allocates the backup tape restoration costs between Zubulake and UBS with a detailed explanation of the appropriate criteria and weighting.

Zubulake IV, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) This decision ordered sanctions against UBS for violating its duty to preserve evidence and in the process established a scope of duty to preserve back up tapes, but only in special circumstances.

Zubulake V, Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) Zubulake V requires outside counsel to make certain that all potentially relevant information is identified and placed “on hold”. In the words of Judge Scheindlin:

To do this, counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information.

Judges are upset by all of the mistakes:

Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. 2000). $10,000 personal fine of the CEO as part of spoliation sanctions for failing to take reasonable steps to preserve ESI; $1.5 Million in Fees incurred to try and protect the CEO from this personal liability. Court held that the Board was not personally liable.

Phoenix Four, Inc. v. Strategic Resources Corporation, 2006 WL 1409413 (S.D.N.Y. May 23, 2006). Plaintiff obtained sanctions in the form of a fee award against both the defendant and its attorney for the late production of electronic records caused by dereliction of investigation duties set forth in Zubulake. The court also applied future Rule 26(b)(2) and required disclosure of the sources of inaccessible data. In this case, the data was not inaccessible at all, it was just hidden by defendants in a partitioned section of the hard drive. The attorney did not understand this and personally paid for his ignorance. Cases like this cause many attorneys to bring in experts to assist in e-discovery.

Keir v. UNUMProvident Corporation, 2003 WL 21997747 (S.D.N.Y. 2003). A series of total mess-ups and miscommunications by defense counsel, IT staff, IBM, and others concerning backup tapes and data retention lead to unintentional spoliation and violation of a preservation order.

Plasse v. Tyco Elec. Corp., 2006 WL 2623441, (D.Ma. Sept. 7, 2006). Employee/Plaintiff’s case is dismissed because of e-discovery abuses and attempt to fabricate computer files and defraud the court; the case is won by good computer forensics.

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla.Cir.Ct.. 2005). 1.45 BILLION DOLLAR ($1,450,000,000.00) Jury Verdict entered against defendant brokerage after numerous sanctioned e-discovery abuses and adverse inference instructions. Note the Plaintiff, Ron Perlman’s, initial settlement demand was purportedly “only” Two Hundred Million dollars. Defense counsel certified all records had been produced, but later many more backup tapes were discovered. The case demonstrates a series of technological blunders that look like spoliation. Reversed on appeal for grounds having nothing to do with discovery sanctions.

Carlucci v. Piper Aircraft, et al, 102 F.R.D. 472 (S.D. Fla. 1984). A horror story of e-discovery abuses and errors by defendant, involving a special master appointed by the court and an angry district court judge who enters the extreme sanction of default, plus fees and costs.

More cases of interest:

3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006). Patent infringement case where an adverse inference sanction is imposed against defendant because of failure to initiate a litigation hold, resulting spoliation and other improper discovery conduct, such as the president’s coaching of witnesses at depositions. The president is also banned from attending any more depositions.

Applied Telematics, Inc. v. Sprint Communications Co. L.P., 1996 WL 33405972 (E.D.Pa. 1996). Patent infringement case where plaintiff granted an adverse inference instruction, fees and costs as sanctions for spoliation because some backup tapes that were later determined to have relevant evidence were not preserved, but were instead allowed to be written over as part of routine procedure.

Bills v. Kennecott Corp., 108 F.R.D. 459 (D.Ut. 1985). Age discrimination suit where court considers the costs of computer production and requires employer defendant to bear the costs, rather than shift the burden to the plaintiffs.

Bob Barker Co., Inc. v. Ferguson Safety Products, Inc., 2006 WL 648674 (N.D.Ca. March 9, 2006). Lanham Act case where court rejects request for production or inspection of software based financial databases, noting that it is unclear how a dynamic collection of data which changes over time could be produced. Court noted the plaintiff could later request expert examination of defendant’s computers to run database reports upon a showing of good cause.

Dodge Warren & Peters Insurance Services, Inc. v. Riley, 105 Cal.App.4th 1414 (4th Div. 2003). In an action against former employees who left to start their own competing business, the California appeals court affirmed the trial court’s entry of a preliminary injunction requiring the preservation of electronic evidence, and allowing a court appointed expert to image and search defendant’s computers.

In re Carbon Dioxide Industry Antitrust Litigation, 155 F.R.D. 209 (M.D. Fl. 1993). Depositions under 30(b)(6) to “identify how data is maintained and to determine what hardware and software is necessary to access the information are preliminary depositions necessary to proceed with merits discovery.”

In re Ford Motor Co., 345 F.3d 1315 (11th Cir.2003). Ford obtained a writ of mandamus directing the district court judge to vacate a discovery order requiring Ford to provide plaintiffs with direct access of its computer databases to search for similar seat belt incidents. There is no right to directly access another’s computer systems. Instead, only the reports and data output of the computer systems must be produced. Must show prior noncompliance to justify direct access, and even then it should be restricted and other safeguards provided.

In re Prudential Insurance Company of America Sales Practice Litigation, 169 F.R.D. 598 (D. New Jersey 1997). Records were not preserved as a result of an ineffective litigation hold notice and enforcement. A $1,000,000 fine was imposed as a sanction, plus fees. The court severely criticized Prudential for not having “a comprehensive document retention policy with informative guidelines and lacks a protocol that promptly notifies senior management of document destruction.”

Leon, M.D. v. IDX Systems Corp., 2006 WL 2684512 (9th Cir. Sept. 20, 2006). Doctor employee case dismissed with prejudice and defendant awarded $65,000 in fees as spoliation sanctions. The defendant employer proved that the doctor had erased 2200 files from his employer owned-laptop during case pendency, including some pornographic files. District Court took this action even though the DOL determined during the case pendency that the doctor had been wrongfully discharged as his complaint alleged. Ninth Circuit affirmed, finding that no privacy rights had been violated.

Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Ca. 1999). Playboy sued a former playmate of the year for trademark infringement who counter-sued for emotional distress. A discovery dispute arose and Playboy asked the court to allow it to access the playmate’s hard drive to create a mirror image of the whole thing so as to search for deleted emails. The playmate testified it has always been her practice to delete emails the same day she reads them, and then to delete her trash. The Magistrate allowed the hard drive inspection, but only through a court appointed expert, who would act as an officer of the court, and protect the defendant’s privacy and attorney client privilege. Data recovered by the expert, along with the mirror image of her hard drive, would be turned over to defense counsel, not the plaintiff. Defense counsel would then review and produce any recovered emails or other materials deemed relevant and create a privilege log.

Pueblo of Laguna v. United States, 60 Fed.Ct. 133 (2004). The Pueblo Tribe sought an order requiring the government to preserve certain electronic records pertaining to their claims. The government argued unsuccessfully that the U.S. Court of Federal Claims did not have the authority to enter such an order tantamount to an injunction. The Court held that it was part of its inherent powers to order the preservation of evidence. A record retention preservation order was entered that not only prohibited the deletion of records, but provided the Plaintiff with inspection rights to inactive records. The Plaintiff’s requests to inspect active records or limit records transfers were denied. The order includes lengthy definitions of documents and preservation.

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006). Cost shifting case where defendant succeeded in having the plaintiffs pay for 30% of their $226,000 backup tape restoration and search expenses with Kroll.

Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002). District court denied defendant an adverse inference instruction because the email production was delayed due to negligence, not gross negligence or bad faith. Appeals court reverses; simple negligence alone is sufficient to justify this sanction, especially where plaintiff’s counsel was “purposely sluggish” in not producing the emails until after the trial had started.

Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001). Dismissal of Plaintiff’s case was upheld because of spoliation; he did not preserve his allegedly defective car for defendant to inspect. The court rejected arguments that it was not his fault, it was his attorney’s, and he had no duty to preserve the car because he did not own it, his parents did. The Court articulates its inherent powers to impose sanctions, including the ultimate sanction of dismissal, where critical evidence is not preserved, even if the loss was merely the result of negligence, and not bad faith.

Simon Property Group LLP v. mySimon, Inc., 194 F.R.D. 639 (S.D.In. 2000). Plaintiff moved to compel defendant to make computers available for inspection to attempt to recover deleted files. The court held that deleted computer records are discoverable documents and allowed the inspection at the plaintiff’s own expense, following the guidelines set forth in the Playboy case; imaging, outside expert review, followed by review by plaintiff’s counsel.

Stevenson v. Union Pacific Railroad Co., 354 F.3d 739 (8th Cir. 2004). Audio tapes concerning an accident were destroyed as part of the railroad’s usual records retention policy; still an adverse inference instruction was justified as a spoliation sanction because it was not reasonable to follow the policy under these circumstances, and because the railroad had departed from this practice in the past when the voice tapes were helpful to the defense. Appeals court did, however, reverse on the trial court’s refusal to allow the railroad to present evidence to try to rebut the inference by providing testimony that the tape destruction was in accord with its records management policy. The case was remanded for a new trial.

Tessera Inc. v. Micron Technology, Inc., 2006 WL 733498 (N.D.Ca. March 22, 2006). Third party subpoena of electronic database records where a key dispute was the parties’ inability to agree on search terms to harvest the data. The court decided what search terms should be used. The third party was ordered to produce certain other databases in their entirety on DVDs because the third party claimed that they could not be searched for screening. The third party’s request for an award of costs incurred, over $70,000, was granted.

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004). Sex harassment class action where the plaintiffs were looking for pornographic materials on defendant’s computers to prove hostile work environment. Kroll Ontrack was hired by plaintiffs to search the email server backup tapes in eleven offices. Pornography was found in 8,860 emails and the plaintiffs sought to have defendant pay Kroll’s entire $249,000 bill. The Kroll search system and deduplication is explained in some detail. Sampling was used, along with competing search terms. The parties debated how much porn was found on a percentage basis of total emails with plaintiffs claiming 21.3% and defendant claiming only 1.64%, and the overall value and utility of the search. A modified Zubulake II test was employed to determine who should pay for the e-discovery. The decision itself is a compromise; the plaintiffs were ordered to pay 75%, and the defendant 25%.

Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D.Kan. 2005). This is an important case discussing native files, metadata, and the hashing of electronic evidence. This was an age discrimination class action where defendant at first produced Excel spreadsheets in TIFF format. Plaintiffs complained, stating they needed active files so they could see the formulas and run the files for analysis. Defendant agreed to produce the active Excel files, and after several delays finally did so. Plaintiffs then discovered that the Excel files had all been scrubbed of all metadata and certain cells locked so they could not be accessed. The Court had ordered defendant to produce the Excel records as active files “in the same manner as they were maintained” and so ordered Sprint to show cause why sanctions should not be entered for its unauthorized metadata scrubbing. Defendants argued that there was an emerging standard against the production of metadata. The court discusses metadata at length, what it is, and why it can be important and what the commentaries, primarily Sedona, and case law suggest is the emerging trend as to metadata scrubbing or production. The Court in its lengthy opinion disagrees with defendant, holding that metadata must be produced absent agreement or court order, and so ordered Sprint to produce the Excel files again, but this time with metadata intact and cells unlocked. Sanctions were not, however, imposed since metadata had not previously been specifically discussed or ordered.

The Days of the Bates Stamp Are Numbered

As a kind of strange lawyer-mid-life-crisis, I wrote my first law review article last year: HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007). Following tradition, I tried to make the opening sentences as clever as possible:

For over one hundred years, complex litigation has relied upon the ubiquitous Bates stamp to try and maintain order and clarity in paper evidence by placing sequential numbers on documents. In today’s world of vast quantities of electronic documents, the days of the Bates stamp are numbered. Instead, the future belongs to a new technology, a computer-based mathematical process known as “hash.” (emphasis added)

Ok, maybe not so clever, but still, I was delighted to see an article this week entitled Bates Stamps’ Days May Be Numbered by Tom O’Connor in Law.com’s Legal Technology section. No big surprise here as I met Tom a few weeks ago, and we talked about hash. (I tend to do that, a lot.) I liked how Tom saw the conversion from Bates stamping to hash as symbolic of a paradigm shift, not only in e-discovery, but in the world at large. Tom and a few others, such as Craig Ball, see a significance in the move to hash beyond what I understood when I wrote the article. They also have a better grasp of how this fits with other e-discovery technologies and procedures to facilitate what Tom claims are huge savings in time and money. I gave Tom a copy of my article, as he had heard about it from Craig but not yet read it. (Yes, I usually keep an extra copy in my briefcase.)

I mentioned Tom’s ideas in a prior blog, e-Discovery at the Harvard Club in New York City, based on his presentation at the CLE. The article Tom has since written, Bates Stamps’ Days May Be Numbered, provides more meat for the bones, which I will attempt to summarize here and place into proper hash context. For still more information listen to Monica Bay’s recent interview of Tom on Legal Talk Network.

For those not real clear on what hash is, and what it could possibly have to do with the 19th Century Bates stamp shown above, I suggest you read my law review article. But if the thought of reading a 44 page academic paper with 174 footnotes leaves you cold, I suggest you try my Hash Page summary instead, or my earlier blog on Hash. They will give you a pretty good idea of how hash is the mathematical foundation of e-discovery, not a corned beef dish, and why this math should render sequential numbering obsolete. There are also many interesting comments left on these blogs by experts in the field, including an esoteric argument I had with a few vendors concerning the legal efficacy of hash in ESI authentication. These short articles do not go into law-review-depth, but do lay a helpful predicate to understand what Tom is talking about.

Tom’s article begins by noting that most people doing e-discovery today still rely on Bates stamping. They scan and sequentially number ESI as if it were a piece of paper. Then he observes, as I did in my introduction, that this system will not work “in today’s world of vast quantities of electronic documents.”

But that process is simply not effective when dealing with terabytes of data. To address the sheer volume, many vendors are advocating a new way of working with electronic documents that can reduce costs as much as 65 percent by eliminating the need for text extraction and imaging in the processing phase. Beyond immediate cost savings, this approach also provides cheaper native file production, reducing imaging costs for production sets and saving up to 90 percent of the time needed to process documents. How? By not using Bates numbers on every page.

Later Tom explains that the alternative to Bates numbers is hash values. But first, he details how and why this conversion can save so much time and money:

Currently, to provide Bates numbering, many vendors generate TIFF images from native files and then Bates number those images. But this process complicates native file review and — at anywhere from eight to 20 cents per TIFF — adds considerable cost to the process. Typically, during processing, data is culled, de-duplicated; metadata and text are extracted; and then a TIFF file is created. An unavoidable consequence is that the relationship of the pages to other pages, or attachments, is broken — and then must be re-created for the review process. Page-oriented programs handle this by using a load file to tie everything together from the key of a page number. But most new software use a relational database that stores the data about a document in multiple tables. To load single page TIFFs into a relational database involves a substantial amount of additional and duplicative work in the data load process.

These steps are avoided by changing to an identification system based on hash values of entire ESI files (which Tom here calls “documents”) that eliminates the need for tracking of individual pages. Here is how Tom explains it, using a lot of e-discovery oriented tech-talk, which, if he is speaking, is usually tempered by a few laughs and war stories:

A document-based data model, rather than a page-based approach, eliminates the text extraction and image creation steps from the processing stage and cuts the cost of that process in half. Documents become available in the review platform much faster — as imaging often accounts for as much as 90 percent of the time to process. This enables early case assessment without any processing, by simply dragging and dropping a native file or a PST straight into the application — which cannot be achieved with the page-based batch process. Relational databases allow for one-to-many and many-to-many relationships and support advanced features and functions — as well as compatibility with external engines for tasks such as de-duping and concept searching. Applications that support these functions — such as software from Equivio, Recommind and Vivisimo Inc. — are all document-based and will not perform in the old page environment. Programs that use the document model can eliminate batch transfer. This process (See Diagram 1 below) increases data storage due to the need for data replication in the transfer process and is also prone to a high rate of human error. And elimination of the time that inventory (in this case, electronic data) is stationary will eliminate overall cost as well as reduce production time

Tom’s diagram above shows the Bates stamp work flow model for traditional Tiff image e-discovery process and review. This procedure treats ESI as if it were paper, and uses sequential numbering, instead of hash, to identify information. According to Tom, this traditional procedure requires a number of time consuming and expensive batch transfer processes. He says these steps are unnecessary and can be eliminated in pure native review that relies on hash. The more simplified “Bates-free” process is shown by Tom’s diagram below. In his words, this is “an easier, faster and more cost-effective e-discovery process.”

Tom concludes that:

A modern litigation support program must be able to review native documents that are not just paper equivalents, and directly enable review of any file that is in common use in business today. The future belongs to these new technologies, where native files are processed without the need to convert to TIFF and are identified by their unique hash algorithm. Attorneys and clients who focus on a document-based system will save time and money and can conduct native file review. In today’s world of vast quantities of electronic documents, the days of the Bates stamp are numbered.

I could not agree more, especially since, unlike the tile, Tom now says the “days are numbered” and not “may be numbered.” I have no doubt about it, even though it may still take many years to get there. Old habits die hard, especially in the legal profession. Still, some day, Bates stamping will seem as quaint and antique as the original Bates numbering machine itself. The original shown above was invented in 1893. The first section of my law review article explains the history of this invention, and how Thomas Edison (shown right) purchased the patent from Edwin G. Bates. Then I go into the theory of hash and native ESI. I explain that hash is the digital fingerprint that identifies every electronic file, and reveals any change in the file. I also explain how hash is used in various e-discovery processes, and examine just about every legal decision ever written which mentions hash algorithms.

In case you have never seen a hash value before, here is an example: 4C37FC6257556E954E90755DEE5DB8CDA8D76710. There are many different types of hash formulas, but all produce lengthy alphanumerics hash values such as this. The two most popular are the SHA-1 hash algorithm which creates a 40 place hash value (shown above), and MD5 hash which produces a 32 place value. Both are too long for a practical naming convention to replace a Bates stamp. So I propose that the value be truncated and only the first and last three places be used. Thus the above hash would be shortened to 4C3.710 . I also propose that the # symbol stand for hash. (The # symbol is already commonly known as the hash mark in most of the world, but in many English speaking cultures, including the U.S., it is also called the number sign or the pound sign). So I propose to abbreviate the above SHA-1 hash with #4C3.710. Some of the technical details of this naming protocol are addressed in the law review article. Others will have to be worked out with time and experience, and the adoption of more standards in the e-discovery industry.

I conclude my article by imagining what a courtroom of the future might be like without the Bates stamp:

In countless courtrooms today, a mantra something like this is heard often: “I am handing the witness a document pre-marked as ‘Trial Exhibit 75’ and Bates stamped as ‘Dr. Smith 0573.’” In the future, the author expects something like this will be heard instead: “I am putting on screen for the witness to view an ESI file pre-marked as ‘Trial Exhibit 75’ and hash marked as ‘Dr. Smith Hash 4F7.C3B (Dr. Smith#4F7.C3B).’” The ESI file may still sometimes be converted to paper, in which case it could be handed to a witness, instead of put on a screen, but the same naming protocol would apply and it would bear a “hash mark” somewhere on the bottom: “Dr. Smith#4F7.C3B.”

Sorry, Mr. Bates, your one hundred-year-plus reign is over.

ABA Litigation Section Reacts to the Qualcomm Case and Recommends e-Discovery Checklists

The Litigation Section of the American Bar Association has published an online article on Qualcomm v. Broadcom. Written by Kristine L. Roberts, Litigation News Associate Editor, the article is significant for its glimpse into the thinking of ABA leaders on electronic discovery abuses. Essentially the ABA litigation leaders remind practitioners of the importance of discovery, and recommend e-discovery checklists as a good way to stay on top of the process and avoid another Qualcomm. While I agree that checklists can be useful, they have their limits, and in my view must be supplemented with expert advice, not to mention a strong sense of ethics and professional responsibility. 

Erica Calderas

Erica L. Calderas is the Co-chair of the Section of Litigation’s Pretrial Practice and Discovery Committee.  Erica is quoted in the article as saying:

The Qualcomm decision reminds all litigators—in a very forceful way—of the serious obligations we undertake in responding to discovery.

She is right on there. Discovery, especially complex e-discovery, is not something you can just delegate to a first year associate and forget about it. It is critical to the outcome of most cases, and can be easily messed up if not done right.

Erica recommends that attorneys use standard form e-discovery checklists in every case to make sure they cover all of the bases and avoid e-discovery violations. Good advice. This is especially important for a general litigator who does not have the assistance of an e-discovery specialist in a small case. Erica specifically recommends that attorneys:

[Use checklists to] ensure that you apply a consistent protocol in any new matter—for example, that you routinely instruct your client to preserve evidence, that you identify witnesses with knowledge, that you determine how the client maintains its documents, that you ask the right questions regarding where potential documents may be located, and that you ask about additional relevant documents and potential witnesses in every witness interview.

Checklists and Specialists

Law firms are now beginning to create and employ such checklists as a routine matter in all litigated matters. For instance, many already follow Erica’s advice and routinely instruct their clients on preservation duties at the beginning of a case. This is not a mere CYA exercise. For many clients, even otherwise very sophisticated ones, it can be a real wake up call. Many in-house counsel are, for instance, unaware of automatic ESI deletion programs, PC and backup tape recycling, forensic collection, and the like. They may need significant help to implement an effective preservation hold and collection program.

A few law firms are taking this a step further and recommending to their litigation attorneys that an e-discovery specialist be included in any significant case. This is not a hard and fast rule; merely a recommendation. In some firms, this advice is often not followed until after there is a problem, instead of at the commencement of the firm’s representation when their input could do the most good.

One large firm, Hunton & Williams, has gone beyond mere recommendation. They have promulgated a rule requiring e-discovery attorney involvement. In their words, they have begun “implementing requirements that an e-discovery specialist be assigned to all significant matters involving ESI.“ Hunton & Williams has 1,000 attorneys in 18 offices, and, of course, many e-discovery specialists. They are, to my knowledge, the first law firm to explicitly make this a requirement, not just a recommendation. Hunton’s Sherry Harris, whom I met last week at the Harvard Club CLE, brought this to my attention and obtained permission for me to share this. This is an important step and the management of Hunton should be congratulated. I expect that other law firms will follow in their footsteps, and eventually this will be commonplace. This is far more effective a solution than just distributing checklists to all litigators and hoping that everything gets done right.

The participation of e-discovery specialists can work seamlessly if the law firm requires it, and if the firm actually has such attorneys to carry it out. But at this point very few law firms actually  have specialists like that, and, of course they do not require what they cannot deliver. Today most law firms, especially small to medium size firms, do not have these specialists. They must look to outside entrepreneurs for assistance when there is a significant matter involving ESI. Of course, I am not saying that every litigated case needs that kind of input. The principles of proportionality and economics must always be followed, and many cases today still do not have a large e-discovery component. 

From what I have seen, although there are many e-discovery vendors, there are still only a few attorneys who specialize in e-discovery. Their numbers are, however, beginning to increase, especially among younger lawyers. The few who are full time e-discovery lawyers typically operate as independent entrepreneurs, or in small groups, or are employed by large vendors and consulting companies. This allows them to consult and be retained by other firms. A few e-discovery attorneys are shareholders, or of counsel, to some of the nation’s largest law firms, such as Hunton & Williams. Over half of the top 50 firms have e-discovery lawyers, but even then with varying levels of expertise. These big firm attorneys are usually fully occupied serving the litigators in their own firm, and are only rarely retained by other law firms as co-counsel.

Instead, the e-discovery lawyers who are on their own, or with consulting firms, are the specialists usually retained by law firms, both big and small, who lack attorneys with such arcane skills. As mentioned, they are usually called in to assist on projects after there is trouble of some kind. It is always challenging to bring in an outside attorney as an expert to assist in a case, but it is particularly difficult when it occurs after a problem develops. For one thing, how do you explain “the cleaner” to the client? No doubt it is the fault of the other side, or perhaps the judge. There can also be relationship issues when new attorneys from different firms work together for the first time. This is especially difficult when the trial attorney in charge has made a mistake and does not want to hear about it, nor understand the complexities involved. Yet, this is typically how and when most e-specialists get involved in litigation.

David Soley

Also quoted in Kristine Robert’s article was David A. Soley, of Bernstein Shur, Co-chair of the Section’s Trial Practice Committee:

We should not be surprised by the ruling, [the opinion] reflects what day-to-day practice ought to be. Attorneys are professionals and have professional standards to uphold, including a duty of good faith and reasonable inquiry in responding to discovery.

I assume David was referring to the sanctions imposed against Qualcomm and its attorneys for not upholding professional standards by trying to hide over 30,000 emails critical to the outcome of the case. David goes on to say that:

because lawyers will be held responsible for their clients’ production of documents, lawyers must go to the site where documents are kept. . . . the lawyer must understand what the client did and then verify it.

Once again, this comment (in my opinion) verifies the need for trial lawyers to obtain the assistance of e-discovery specialists in any large case involving complex computer systems. Counsel must not only understand what the client did, they must be sure their actions complied with the Rules and met the minimum forensic standards for admissibility as evidence. Also, they need to have the backbone to correct a client who screws up, or, as in the Qualcomm case, wants to hide the ball. 

David, who is himself a trail lawyer specializing in real estate litigation, does not talk about retaining e-discovery experts, but again suggests use of checklists.  Here is Kristine Roberts’ report of his comments:

Calderas recommends that to avoid e-discovery violations, attorneys should use checklists to “ensure that you apply a consistent protocol in any new matter—for example, that you routinely instruct your client to preserve evidence, that you identify witnesses with knowledge, that you determine how the client maintains its documents, that you ask the right questions regarding where potential documents may be located, and that you ask about additional relevant documents and potential witnesses in every witness interview.” Calderas also suggests that litigators enter into agreements with opposing counsel regarding what search terms will be used, the places at which relevant evidence may be found, and the persons whose files will be searched.

This is all good advice to be sure, but is it sufficient in a complex case involving large amounts of ESI?

ABA’s Checklist to Avoid Qualcomm’s Fate

The article concludes with a checklist summarizing the recommendations of the ABA leaders on how, as they put it, “to avoid Qualcomm’s fate.” 

1. Use checklists and develop a standard discovery protocol.

2. Understand how and where your client maintains paper files and electronic information, as well as your client’s business structures and practices.

3. Go to the location where information is actually maintained—do not rely entirely on the client to provide responsive materials to you.

4. Ensure you know what steps your client, colleagues, and staff have actually taken and confirm that their work has been done right.

5. Ask all witnesses about other potential witnesses and where and how evidence was maintained.

6. Use the right search terms to discover electronic information.

7. Bring your own IT staff to the client’s location and have them work with the client’s IT staff, employ e-discovery vendors, or both.

8. Consider entering into an agreement with opposing counsel to stipulate to the locations to be searched, the individuals whose computers and hard copy records are at issue, and the search terms to be used.

9. Err on the side of production.

10. Document all steps taken to comply with your discovery protocol.

Once again, all good advice, so long as you understand the limitations of such general advice. Further, if the point is to avoid another Qualcomm, mandatory ethical training should be included, along with the admonishment to walk away from any client who would have you hide evidence or lie to the court. There is no price on a sound night’s sleep. 

Limitations of Checklists

The above ten step checklist is, in my view, only helpful as a general starting point. Law firms should establish much more detailed forms and procedures to do e-discovery right. I know I have personally spent weeks doing just that. My firm, like a few others who have made such efforts, naturally holds such information as a trade secret. You can of course find many checklists online from a variety of sources, but they will all be generalized, and serve only as a starting point for further research, or teaser for retention of services. For one pretty good example, see the e-discovery checklist included in the Association of Corporate Counsel website. The same essentially holds true for form-books and commentaries. No complex area of law can be solved with simple forms and checklists, although again they can be helpful as a starting point. See for example, Electronic Discovery and Records Management Guide: Rules, Checklists and Forms 2008 ed. by Jay E. Grenig, Browning E. Marean and Mary P. Poteet, and Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics (2008-2009) by Michael Arkfeld.  This is especially true of e-discovery which is a combination of the fields of law and technology. In e-discovery, the facts are always different and rapid changes in technology quickly makes yesterday’s solution obsolete. 

Even if the detailed forms and checklists developed by a few experts for private use were no longer confidential, these checklists would not, by themselves, do that much good. They are meant to be used with the assistance of the experts who created them. Forms and checklists require background knowledge and team work with experts to function properly. They work best as a general guide, and reminder not to overlook necessary steps. They also let you know when and how to call for help. Sometimes just knowing what you do not know is half the battle. Step 7 in the above ABA checklist recognizes this in recommending employment of an e-discovery vendor. But be careful in relying too much on some vendors, especially those who are little more than copy-shops and have no in-house legal input.

The truth is, without experience and occasional guidance, simple checklists alone can be counter-productive. They can easily be misunderstood and provide a false sense of confidence. Sometimes it pays to be a little worried and concerned. I am sure that is one of the lessons Qualcomm’s former lawyers have learned. Perhaps the great poet Alexander Pope, whom I have quoted before, said it best in his An Essay on Criticism (1709): 

A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.