Fresh Perspectives on e-Discovery from Young Minds in the “Academy”

The best, most innovative solutions to thorny legal issues are often born in the academic community of law professors and students, a community that still refers to itself as the academy. In this regard, law is somewhat like physics or math, where the best, breakthrough insights often come early in life. Albert Einstein conceived his theories of relativity at age 26. It was pretty much downhill for him after that. The same is true to an even greater extent in the most abstract of fields – mathematics, where there has always been a strange mix of prodigies and geniuses, perhaps best exemplified by the doomed young Indian savant, Srinivasa Ramanujan.  

The young mind is particularly well suited for certain theoretical tasks; innovation in the law is one of those tasks. How else do you explain that only in law are all of the serious scholarly publications run and controlled by students? This is not the case in any other subject, even physics and math.

The emerging field of e-discovery, which combines law and technology, is especially well suited for young legal theorists. We practicing lawyers are tainted by our strongest asset, our wealth of experience. We already know how to do things. We have “been-there, done-that;” the beginner’s Zen mind is gone.

True, the practice of law is now, and always has been, controlled by the senior attorneys, the ones with the experience, clients, and power. But they are rarely, if ever, involved in theory or pure intellectual pursuits. Instead, they are focused on practical issues of representing clients. They devise and advocate theories and positions that benefit their clients, as opposed to theories that are true and just in an abstract platonic sense. They chase the shadows on the cave wall and have no time for frivolities in the sun. They leave justice to the judges and, to some extent, the  law professors. But in the area of e-discovery at least, the professors have been absent, ceding the field entirely to the students and judges.

A small handful of judges have had the time and energy to tackle e-discovery problems, but they have been few and far between. Moreover, the few judges that author landmark rulings in e-discovery recognize their limitations in experience with the digital world, and, like practicing attorneys, are constrained by limited time and resources.  

The few bona fide scholars that have emerged in e-discovery all recognize this problem too. For instance, Ken Withers understands the limits of our current e-discovery leadership and legal practice. Ken has even coined a word to explain the limits inherent to the mature mind, limits that make it so difficult to truly grasp the essence of e-discovery – “protodigital.” Those of us who, like Ken, grew up in a paper world and were first trained  in law as a “paper chase” are of the protodigital type. We are half-in and half-out of the new era of e-discovery. We have inherent gestalt limitations on our ability to make theoretical breakthroughs in electronic discovery. We are like astronaut Dave Bowman in Stanley Kubrick’s film, 2001: A Space Odyssey, before he transforms into the Star-Child.

The young minds who have lived their whole lives in a digital world have a significant edge in an increasingly techno-centric world. They are not as constrained by the shadows of the past. This is one reason that Ken and others in The Sedona Conference, including its executive director, Richard Braman, and the young Patrick Oot, all promote the need for including e-discovery in law school curricula. We all herald the coming good of the next generation of young lawyers.

Clicking Away Confidentiality; a Case in Point

For these reasons I am delighted to see more and more articles written by law students on e-discovery and published by the mainstream law reviews they operate. My son, Adam Colby Losey (shown left), recently published, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, as one of three student articles published in the current issue of Florida Law Review, Volume 60, Number 5, December 2008. Other articles in this same volume include: Student Speech Rights in the Digital Age by Mary-Rose Papandrea, a young Assistant Professor at Boston College Law School; and, Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving for You? by  Giannina Marin, a law review student at the University of Florida School of Law. 

Adam’s article is concerned with the hot topic of when an employee’s use of their employer’s computers to communicate with an attorney should result in a waiver of their attorney-client privilege. Learned judges around the country have struggled with this question and have come up with answers that vary widely. The state of the law of workplace waiver is murky at best.  As a consequence, employees and employers alike cannot predict if employee email communications to lawyers are privileged. Prior to the recent publication of Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, there were no suggestions proposing a solution.

Walter Weyrauch was one of the faculty members at Florida who frequently advised Adam about Clicking Away Confidentiality. He recommended the use of a presumption to deal with workplace waiver. Professor Weyrauch held a J.S.D. in law from Yale (equivalent of a Ph.D.) and taught at the University of Florida for over fifty-one years. He was my favorite law professor at UF in the late 1970s, at which time he had already been teaching at U.F. for over twenty years, and so it was quite amazing that he also taught my son some thirty years later. Shortly after advising Adam on the finer points of presumptions, Professor Weyrauch  passed away on October 17, 2008. His insights and intellect will be sorely missed by the students, faculty, and alumnus of the University of Florida.

Admittedly, I am biased toward an article written by my son. However, he has been independently contacted by several judges, professors, and thought leaders in e-discovery regarding Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege to whom he had sent copies. After a year and a half of work, Adam naturally wants his article to be read and critiqued. I am pleased that the response has been swift and positive. Not merely in words, but also by actions, which speak louder. Adam has already been invited to participate in an e-discovery writing project with two leading scholars. Like me, they see the value of the voice of youth and the pure digital mind.

Adam has even been invited by the Chief Information Officer of the City of New York to participate in an e-discovery seminar in Manhattan this February. They plan on setting up a debate between Adam, representing the responding party, and someone with literally thirty years of legal experience representing the requesting party. No doubt the experienced lawyer assumes this will be a cake-walk, as Adam is still a student. However, I know from many hours of frustrating personal experience that all law students love to argue. With all of the experience they gain through 24/7 arguments at law school, they become very proficient at it. Dinner at the Losey home is often testament to this.

The Meat of Clicking Away Confidentiality

I hope to spend the rest of the blog enticing you to click the following link to Clicking Away Confidentiality and read the article yourself. Adam would appreciate your criticisms and thoughts. It is a concise piece; at 24 pages and 162 footnotes, you can easily study Clicking Away Confidentiality in under an hour and absorb over a year’s worth of work. You may even find that there are sections worth citing and quoting in your own briefs. 

Like most law review articles, it is written in a scholarly style, but also has wit and dry humor. For instance, the article begins with a factual scenario drawn directly from a recent New York Times article interviewing a woman named Barbara Hall. Ms. Hall describes her constant emails to her daughters while at work as “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ . . . .”.  

Reading this article, and others like it now emerging in law reviews around the country, will also provide you with an example of  full digital-mind legal reasoning. These articles provide taste of things to come from the next generation of lawyers. By the end of the read of Clicking Away Confidentiality, especially if you include the 162 footnotes, you will have a thorough grasp of the evolution of the doctrine of attorney-client privilege and when and how it can be waived in the workplace. The only published cases on either side are explained and a proposal is made for resolving the conflict. 

This whole project started about one and a half years ago when Adam was scouting around for a law review topic. At that time, my law firm had two cases where the issue of waiver of privilege by use of  an employer owned computer had become critical. I knew there was blatant conflict in the law, but had no idea how to resolve it. Our job was to present the law so that our client prevailed. I did not try to determine what the law should be or how to reconcile the conflicts. So goes the practice of law.

My only hand in Adam’s project was to influence the choice of topic and thereafter to encourage him in the hard work of research, analysis, and writing. Eighteen months later, when I read the final version of Clicking Away Confidentiality, I was impressed with the ideas, the proposed solution, and the style. In my biased view, Adam’s article is indeed first rate and his proposed solution to the conflict seems sound. However, I invite you to determine for yourself the viability of Adam’s proposed solution to the developing workplace waiver schism.

Before you click and start reading Clicking Away Confidentiality for yourself, you can get a good overview of the work by the Table of Contents:

I. INTRODUCTION: BARBARA HALL AND HER DAUGHTERS 

II. THE EVOLUTION OF ATTORNEY-CLIENT PRIVILEGE 

A. The Traditional Approach 

B. The Modern Approach 

C. Possible Chilling Effects 

D. Intersection with the Work Product Doctrine 

III. CHAOS IN THE COURTS 

A. The Employer’s Policies Regarding Computer Use and Monitoring 

B. Employee Use of a Password-Protected E-mail Account

C. Common Usage of Personal E-mail on Company Computers

D. Employee Attempts to Delete Privileged Material

E. Employer Enforcement of any Existing Policies

F. The Location of the Computer

G. The Forensic Method Used to View an Employee’s E-mails

H. Fairness and Public Policy

IV. MAKING SENSE OF IT ALL

A. The Knowledge Gap

B. Modern vs. Traditional Approach to Attorney-Client Privilege

V. THE WORKPLACE WAIVER PRESUMPTION

A. The Bright-Line Fallacy

B. Distillation of Logically Pertinent Variables

VI. CONCLUSION: ADOPTION OF THE WORKPLACE WAIVER PRESUMPTION

I am not going to steal the thunder of the article by revealing the details of the proposed solution to this problem, suffice it to say that it involves the application of a rebuttable presumption concerning whether the privilege has been waived. The presumption is triggered by proof of certain basic facts and circumstances concerning the workplace and employer policies.

As a final enticement to read this article, and the footnotes (as that is where many of the most interesting facts are found) I offer a few quotes. The first is from the introduction explaining the premise and scope of the article

While an estimated 90% of companies that monitor employee communications notify their employees about the possibility of monitoring, many employees are oblivious to the fact that a permanent record may exist of their Internet and e-mail use at work. This ignorance has resulted in serious consequences for employee litigants. At risk are the communications between attorney and client that have been extended special legal protections throughout history. This Note discusses workplace monitoring of these privileged communications. (footnotes omitted)

Part II points out the growing and unspoken abandonment of traditional approaches in these non-traditional cases. Part III describes the hodgepodge of emerging case law on the subject. Part IV attempts to identify the underlying source of difficulty in these abstruse cases. Part V teases the logically pertinent variables out of existing case law, and uses these variables as building blocks to construct a workplace waiver presumption. Finally, Part VI advocates the universal adoption of this workplace waiver presumption.

In these workplace waiver cases, a schism is quietly developing. Some courts are discreetly (and perhaps inadvertently) abandoning the traditionally accepted narrow interpretation of attorney-client privilege in favor of a broad protective approach on public policy grounds. Others continue to adhere to traditional doctrine. A clash between these two schools of thought may be inevitable. The universal application of a rebuttable presumption that an employee has waived attorney-client privilege could avert a direct collision between these two schools of thought and establish a semblance of predictability in workplace waiver cases.

Here are the final two closing paragraphs of the article. Read the whole work to understand exactly what presumption is recommended.

Courts can and should distill existing case law to determine the logically pertinent factual variables in workplace waiver cases, but a jurisprudential clash may be inevitable. Courts that have adopted the broad (modern) approach to attorney-client privilege, and those that have held fast to Wigmore’s narrow (traditional) interpretation are on a collision path.

The application of the workplace waiver presumption, described in this Note, is the best way to avert a direct collision between these two schools of thought and to achieve a semblance of predictability in these cases. Adherents to both the modern and traditional approaches would be able to use this presumption without compromising their viewpoints. This presumption would give courts a workable, flexible rubric that would prove invaluable in working through workplace waiver issues. It is clear that the adoption of the workplace waiver presumption is the logical first step in the development of workplace waiver jurisprudence.

Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 20 Fla. L. Rev. 5 (Dec. 2008).

Happy Holidays to you and your family!

Kroll’s Report and Analysis of the Most Significant e-Discovery Cases in 2008

Kroll Ontrack has just released a report analyzing 138 judicial opinions pertaining to electronic discovery issued from Jan. 1, 2008 to Oct. 31, 2008. The title of the report pretty much says it all:  Year In Review: Courts Unsympathetic to Electronic Discovery Ignorance or Misconduct.

Kroll also selected what it considers the top five most significant e-discovery cases in 2008. I do not agree with these rankings and selection, but anyway, here is how Kroll sees it, followed by my  smart-aleck commentary.

1. Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008).
2. Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008).
3. Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008).
4. United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).
5. Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008).

Keithley as the top case in 2008? No way! It makes my top 10, but certainly not the most significant case of the year.

I really like the Keithley case; in fact, I a wrote an article about it this year as soon as it came out: Tech v. Law – a Plea for Mutual Respect. That is the blog where I pissed off Michael Lynch, the CEO of  Autonomy, by quoting what the Wall Street Journal said he said about e-discovery lawyers (hint – remember lawyers wasting their time reading menus). As I explained in my blog, “This is a case involving serious sanctions against defendants based in no small part upon techs obvious lack of respect of the law and lawyers.” No wonder Kroll picked Keithley as their top case. If I were them, I would too. In fact, I have devoted a whole website, FloridaLawFirm.com, to the importance of both techs and lawyers respecting each other and working together in perfect peace and harmony (its a dream!).

Still, objectively speaking, even though it is a well written and well reasoned opinion by senior federal Magistrate  Elizabeth D. Laporte, a really nice person who I have had the honor to meet on several occasions, it is not the most important case of 2008. Cases where serious sanctions have been imposed because of incredible displays of incompetence and arrogance by both lawyers and techs are legion. We have seen that same message in numerous other cases. We are still not getting it, as many techs and lawyers know all too well, but that does not make it the big case of the year.

So what about Kroll’s number two pick? Peskoff v. Faber? Did they get this one right? No, sorry, wrong again! The opinion’s author, Judge John M. Facciola, is just about my favorite judge of all time, and I hope he forgives me for this, but Peskoff is not the second most important case in 2008. Again, this is an important case, and I would probably include it in my top 10. Indeed, I also wrote about Peskoff in my article: More “Must Read” 2008 Cases – Part Three. I have my own thoughts on what case should be ranked number two for 2008 and I will get to that near the end of this blog.

Kroll’s number three pick is Flagg v. City of Detroit. This is another pretty good case and I have already written about it in More “Must Read” 2008 Cases – Part One in a Three Part Series. But the third most important case in 2008? Nah! Sorry dear Kroll, but you got it wrong again, way wrong. Flagg is a text messages case coming out of Detroit that does not involve the mayor and his girlfriend, uh, I mean aide. It ordered the production of other government employee text messages involving a murder investigation and set up a protocol for their review by magistrates for relevancy before production. (I bet that was a choice job!) Sorry, I do not think the discoverability of text messages is all that earth-shattering. This case does not even make my top ten, much less number three.

Kroll’s number four pick is United States v. O’Keefe. This is another case by Judge Facciola and, again, I have previously written about it in Criminal Case Raises Interesting e-Discovery Search Issues. Ok. This is finally one I agree with. As I said in my article on this important case: “To my knowledge, O’Keefe is the first opinion to suggest that judicial review of alleged search deficiencies requires expert testimony.” This case is a gem for many reasons, including both its ideas and writing style. It contains the now famous line (or infamous depending on who you ask) by Judge Facciolla:

Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.

I agree that O’Keefe is the fourth most important case in 2008.

Coming in last on Kroll’s top five list is Victor Stanley, Inc. v. Creative Pipe, Inc. I really like this case, so much so that I took the unusual (for me at least) step to study the docket sheet on Pacer, read most of the pleadings in the case related to discovery, and even a few related to the merits (shudder) of the case, and spoke with the plaintiff’s counsel.

I wrote a long article on Victor Stanley called Hundredth Blog: Thoughts on SEARCH and Victor Stanley, Inc. v. Creative Pipe, Inc. where I took a moment to observe the writing of my one-hundredth blog, debunked the theory of the Hundredth Monkey effect, threw in a discussion of golf and Tiger Woods, and discussed this important case on search at length.

This 43 page opinion by Judge Paul W. Grimm is one of several masterpieces he wrote in 2008. Judge Grimm continued and elaborated on the story of search begun by Judge Facciolla in O’Keefe. Grimm’s tale concluded by finding waiver of privilege from negligent search. To quote just one of many important passages in this case:

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

If so, then the trial judge must decide a method’s appropriateness with the benefit of information from some reliable source – whether an affidavit from a qualified expert, a learned treatise, or, if appropriate, from information judicially noticed. To suggest otherwise is to condemn the trial court to making difficult decisions on inadequate information, which cannot be an outcome that anyone would advocate.

Once again I must disagree with Kroll on the ranking of this case. Victor Stanley should not be ranked the number five case, it should be ranked number three. Kroll has understated the significance and important scholarship of this case. Victor Stanley is a treatise on e-discovery search and a guide to proving reasonable efforts. As Jason R. Baron is quoted as saying: “what Judge Grimm has done is give a road-map to lawyers in the United States on how to present to a court how they went about searching for relevant documents.”

My Top Two Cases for 2008

So what case do I think should be ranked number two for 2008? Well, it just happens to be another opinion by Judge Paul Grimm. Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). It just squeaked in Kroll’s October 31, 2008 deadline here, so there is no excuse for their omission of this important case.

In Mancia Judge Grimm once again dazzles with scholarship and writes a law review article on the importance of Rule 26(g) and cooperation in discovery, which is not so cleverly disguised as a 30 page opinion on a motion for sanctions. Again, I wrote a long article on Mancia as soon as it came out entitled A New Opinion by Judge Grimm Makes the Legal Case for Cooperative Discovery.

As I previously stated in that blog:

Mancia contains an excellent overview of the federal rules and other law that require a cooperative approach to discovery. The opinion thus establishes a solid legal foundation for the new Sedona Conference Cooperation Proclamation,which I discussed at length in Hospital Defendants Martyred in the Cause of Cooperative e-Discovery. Mancia shows that far from being a Utopian ideal, the cooperative approach to discovery promoted by Sedona is already mandated by the law. 

This case should be included on everybody’s top five list. Judge Grimm correctly observed in Mancia that:

The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive-to the point of pricing litigants out of court. (extensive citations omitted)

Judge Grimm goes on to preach an important message that should be heard by all lawyers involved in litigation:

A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve.

Sorry, I think this is far more important than the discoverability of text messages and so I rank Mancia as my second most important case for 2008, and do not include Flagg v. City of Detroit as anything more than an interesting hick-up.

Now for the MOST IMPORTANT CASE OF 2008! Drumroll please. It is Qualcomm, what else? And it will probably be the most important case to e-discovery in 2009 as well. How in the world did Kroll omit Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) (one of several relevant decisions in this case)? I have written on this landmark discovery ethics case many times:

• The Lessons of Qualcomm: A Wake Up Call for the Legal Profession
• ABA Litigation Section Reacts to the Qualcomm Case and Recommends e-Discovery Checklists
• Sanctions Have Been Lifted Against the “Qualcomm Six” and a New Trial Ordered Where They May Now Speak Freely to Defend Themselves
• Qualcomm’s “Monumental Discovery Violations” Provokes Only Wimpy Sanctions;
• Update of Two Prior Sanctions Blogs: Qualcomm and Morgan Stanley,
• Heavy Sanctions Loom Against Attorneys for e-Discovery and other “Aggravated Litigation Abuses”

All I can say at this point is  dictum meum pactum. If the lawyers do not follow the rules, who will? Certainly not Governor Rod Blagojevich, who, I am bleeping sorry to report, was a trial lawyer, a prosecutor, before going into politics.

To sum up, here are my Top Five cases for 2008:

1. Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).
2. Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). 
3. Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008). 
4. United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).
5. Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008). 

Kroll’s Statistical Analysis of 138 Cases in 2008

Going back to Kroll’s report, it claims that over half of the e-discovery cases this year have addressed court-ordered sanctions, data production, preservation, and spoliation issues. That sounds about right to me. According to Kroll’s analysis, the major issues in these cases can be broken down as follows:

• 25% of cases addressed sanctions 
• 20% of cases addressed various production considerations 
• 13% of cases addressed preservation and spoliation issues 
• 12% of cases addressed computer forensics protocols and experts 
• 11% of cases addressed discoverability and admissibility issues 
• 7% of cases addressed privilege considerations and waivers 
• 7% of cases addressed various procedural issues 
• 6% of cases addressed cost considerations 

According to Michele Lange, director of Legal Technologies for Kroll Ontrack, the meaning of these cases is obvious:

It is clear that courts are no longer allowing parties to plead ignorance when it comes to ESI best practices. These cases exemplify that judges can and will hand out sanctions for mishandling ESI and lack of document retention policies. Having a well-crafted document retention policy, ensuring cooperation between legal and IT departments, and partnering with an e-discovery expert can help prevent the same mishaps described in these cases, ultimately saving organizations hundreds of thousands in sanctions and reputation damages.

On this point Kroll and I agree, which, considering how late it is on a Sunday night, seems a pretty good note of harmony on which to end this blog.

Why E-Discovery is Ruining Litigation in America and What Can Be Done About It

The Emperor's New Clothes

A report of the American College of Trial Lawyers concluded that electronic discovery is the main problem with the U.S. legal system today. Runaway e-discovery costs are making it too expensive and uncertain to try cases. Litigants, especially large companies, are driven to ADR or forced to settle at inflated prices just to avoid e-discovery. Trial lawyers, and some in-house counsel too, blame the new rules and our judges. They see the problem, but, as I have said before, they misdiagnose the cause. They are hoodwinking themselves like the emperor with his phony new clothes.

The true cause of the e-discovery morass is our profession’s failure to keep pace with the dizzying advances of new technologies. In less than a generation, writing and evidence has been completely transformed as George Paul has shown in Foundations of Digital Evidence.  To put it bluntly, most of us trial lawyers are not fully competent to practice law in today’s digital age of terabytes of potential evidence. Most of us do not know how to do e-discovery in an efficient and cost effective manner in that kind of an environment, much less employ effective quality control procedures. Vendors and others spin a web of pseudo-competence and feed our trial lawyer egos. Most litigants, even large corporations that should know better, go along with it. They do so either out of blind-cronyism, a similar lack of knowledge, or a false assumption of security from a big firm name. The clients take the huge bills in stride and accept that there is no way around it. Alternatively, they refuse to do e-discovery altogether and risk sanctions. One wonders how long it will take corporate America to realize that the emperor has no clothes? 

Ken Withers, one of the deepest thinkers around in e-discovery, is trying to coin a new word - protodigital - to help us all understand this crises of competence.  We litigators over forty were among the first to venture into the digital age, but we grew up in a paper world; we learned our lawyering skills with dead-trees, not ESI. Our thinking is molded by the paper world of the past in a million subliminal ways. It is hard to break out of that paper prison, but we must do it in order to stop mismanaging e-discovery. Here is how Ken explained it in the briliant keynote speech he recently gave at the Georgetown University 5th Annual Advanced E-Discovery Institute Program:

What do we mean by that? “Protodigital?”

This senior generation of litigators (and I’m at the tail end of it myself) is fully cognizant that we live in a digital world and are themselves likely to use computers to some extent – for word processing, for email, to read a court decision online, perhaps even to generate a spreadsheet.

But they are still thinking of the digital information system as a set of tools for producing information (the document, the email communication, the legal opinion or spreadsheet) that they will manage as though that information were paper-based. They think that it is somehow appropriate to manage digital information, and discovery, by analogy to the paper world. This failure of many litigation decision-makers to think beyond the protodigital is having catastrophic consequences for the ability of our civil justice system to deliver the just, speedy, and inexpensive determination of ANY action. (bold font added) . . . 

The massive mismanagement of e-discovery in the past few years by the protodigital generation has been grudgingly underwritten, to a large extent, by clients who had the resources to pay the bills and were never presented with alternatives.  (emphasis added) Those days are over, and the Net-Geners will soon be paying the tab, figuratively and literally, and calling the shots.

The inability of American lawyers to do e-discovery at a reasonable cost is becoming a world-wide embarrassment. Even the intellectual press in the U.K. is starting to pick up on it. For instance, an article in the Economist entitled The Big Data Dump, opined that because of expensive e-discovery, the U.S. “civil-justice system as a whole threatens to get bogged down.”  The article then quotes Supreme Court Justice Stephen Breyer, expressing concern that, with ordinary cases costing millions just in e-discovery work, “you’re going to drive out of the litigation system a lot of people who ought to be there” so that “justice is determined by wealth, not by the merits of the case.” The article also quotes my golfing friend, Pat Oot:

Patrick Oot, a lawyer for Verizon, an American telecoms giant that gets sued a lot, says that at the beginning of this decade e-discovery presented “a one-big-case, once-a-year problem”. In most cases information was still on paper, and its volume thus limited. In the rare event that electronic evidence was requested, 100 gigabytes (GB) was considered a large amount. Today, says Mr Oot, almost every case involves e-discovery and spits out “terabytes” of information—the equivalent of millions of pages. In an ordinary case, 200 lawyers can easily review electronic documents for four months, at a cost of millions of dollars, he says.

The solution proposed by the Economist echoes our own trial lawyers, change the rules again to stop e-discovery and blame our judges. But the British publication goes a step further and suggests that we yanks should move away from our current system of justice altogether. We should instead adopt the inquisitorial legal system used in common law countries in Europe, a process that the U.K. itself is moving towards. As the Economist puts it:

This is overwhelmingly an American problem. In countries such as France and Germany that have an inquisitorial legal tradition, e-discovery tends to be proportionate to the case, because judges largely determine what information is relevant.

I for one say no! We need to step up our game and protect the American system. As Ken Withers, Patrick Oot, and a most of my readers know fully well, there is another way, a way that preserves our legal traditions and still keeps e-discovery affordable. Electronic discovery can be brought under control by competent, informed management of the process. This requires experts who are fully competent in all aspects of e-discovery. They are professionals involved full time in this arcane pursuit, typically outside counsel, consultants, or a few in-house attorneys like Patrick Oot.

Unfortunately, the vast majority of lawyers and paralegals involved with e-discovery today, typically those involved only occasionally or on a part-time basis, do not have the skills and deep knowledge required for economical e-discovery. They may suspect their protodigital incompetence, just like the emperor may suspect his new suit, but they are typically in deep denial. Even giant vendor bills, sanctions, and huge losses do not wake them up. When things go wrong, it is always easier to blame forces beyond your control, such as the new rules, judges, and every-body’s personal favorite, selfish plaintiff’s attorneys.

As a reader of this blog you are probably among the small but growing minority who already understand what to do to control costs. You have already worked hard to make your own clothes, your own skills, or are in the process of doing so. You have escaped the weaver’s spell of flattery and false competence, based as it was on partial knowledge, protodigitality, and vendor dependence.

Some of you may have the requisite skills and knowledge, and may see the emperor for who he really is, but are afraid to say anything out of fear of retribution. After all, no emperor likes to be exposed, and usually does not take kindly to those who point out the obvious. Do you dare cry out that an e-discovery bill of a million dollars in a case worth two million, on its best day, is absurd and shows that somebody made a huge mistake? (Hint – it was not the judge.)

I know from your email that some of you know better, but are anyway forced to go along with the old game. You are stuck in a system that still follows the old protodigital paradigms of over-collection and over-review so as to keep the profit-machine running. This is a short-sided mistake, as you well know.

To turn around the profit-emperors requires a persistent, persuasive approach. Although I may be preaching to the choir here, I offer this sermon as a way to help you to get the word out about economical e-discovery. The economy is in severe decline. That means the time is now ripe for these sermons. 

Sermon of Protodigital Transcendence

The sermon of competent e-discovery as the path to salvation of costs and risks is always preached in a slightly different manner depending on who you ask and when you ask it. But the essential message of protodigital transcendence is the same. If e-discovery is done right, it can be done at a reasonable price. There is no need to abandon our system of justice, or angrily shake your fist at our judges and new rules. Instead, we avoid bankruptcy by full emersion into the digital clouds.

So here is my best answer today, but if you ask again in six months, it is likely to change again. This is a fast moving field and the only consistency is change. Reasonable, affordable e-discovery requires three steps (1) establish and operate an interdisciplinary tech/law e-discovery team, a step which many in-house counsel have already begun, (2) strategic cooperation with opposing counsel in technical areas of discovery to avoid unnecessary disputes, instead focusing adversarial arguments on case merits and 26(b)(2)(C) evaluation, and (3) case metrics.

The last point is critical and has been largely ignored by most law firms and vendors in representing their corporate clients. As a client, you have a right to know in advance what an e-discovery production will cost and how long it will take, or at least a range. You also have a right under all state and federal rules to limit the discovery costs proportionally to the value of the case. For too long, in-house counsel have been asked to get on board an e-discovery train without knowing the price of the ticket or how long the trip will take. That must stop in order to get e-discovery under control.

Most attorneys today agree to search terms for the production of their client’s information without first knowing what the likely cost will be to review and produce this information. Further, keywords are agreed to and used without first testing them on smaller data samples to evaluate their efficacy. What percentage of the documents they produce will actually be relevant? Since even small clients now have incredibly large amounts of data in their computer systems, the net result of this haphazard approach is that far too much data is collected and far too much time and fees are wasted on review of irrelevant information.

This over review and production is the cause of run away e-discovery costs, not the new rules or bad judges. This can be stopped by metrics and more scientifically based cost estimation. You should have a good idea of what an e-discovery project will cost, and how long it will take – and have your attorneys be ready to prove that in court, if need be – BEFORE you agree to it. If opposing counsel insists on keywords that your analysis shows will produce too many documents and too much irrelevant data, then take it to court immediately and argue that excessive burden. Exact predictions are not required, only good faith estimates based on expert analysis, preferably your own, and reasonable assumptions.

To do this you need to test various proposed keywords on smaller sample sets of data before any agreements are reached or productions are started. Blind faith guesses of what might work always results in over-review and over-production, or worse, in very expensive “do-overs.” This misguided kind of guess-searching is the root cause of the skyrocketing costs of e-discovery. It must be replaced by judgmental and statistical sampling techniques, iterative processes, quality control, and staged productions.

As David Baker put it, who is the only judge I know who has been playing with computers longer than I have:

Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness. If AZ took such steps, it has not identified or validated them.

In re: Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. Aug. 21, 2007).

The new metric techniques allow for an informed evaluation of proposed key words wherein you can limit the number of electronic files to be reviewed and produced. This intelligent management process builds a strong case against obstructive opposing counsel trying to force excessive discovery costs for strategic purposes. The courts will enforce the limited proportionality of discovery costs if protective orders are properly sought with valid expert substantiation.


Under the system I have developed, and no doubt others in the industry have developed similar approaches, we test proposed key words and other culling factors (time range, number of players, etc.) before any agreement to use specific keywords with opposing counsel, or absent an agreement process, before the full work commences. The process is technical and complex, but essentially we use an iterative system of early review of sample data sets. We then project the cost to review the sample set to calculate an estimate for the likely total cost of review of all of the data. Thus, if we find that it takes 100 hours to review a 10% sample of the total ESI collected by the keywords under consideration, we can reasonably project a total review time of 1,000 hours.

The same sampling process is used to test the efficacy of key words and ultimately to pare down the number of keywords used so as to reduce the total amount of ESI to review. We do not undertake to use keywords until we are satisfied that the likely cost to review the amount of ESI those keywords will generate is within a range acceptable to the client and warranted by principles of proportionality (FRCP 26(b)(2)(C)) and the value of the case.

As part of this evaluation process, we also analyze the efficacy of the search parameters. We do that by various judgmental sample reviews. For example, a reviewer may look at a sample consisting of the information generated by the top ten keywords, the ones that generated the most hits. The reviewer then ranks the relevance of the ESI so uncovered. What percentage of these documents are irrelevant, that is “false-positives”? Are the relevant documents found of only marginal relevance, or are they strongly relevant? We also look at the flip side, where a reviewer will examine a sample set consisting of a random selection of the misses. What percentage of the files excluded by the keywords were actually relevant, that is, “false-negatives,” and if so, rank the relevance.

With this kind of quality control process and information we can make informed adjustments to the keywords, the Boolean logic of the keywords (should it be within 10 words instead of 5?), and other culling factors such as custodians, date ranges, computer systems, deduplication schemes, etc. Ultimately, we reach a formula that produces a number of electronic documents that can be reviewed at a reasonable cost in view of the amount at issue in the case and other factors. This is typically presented as a first disclosure step, and additional, much more focused discovery requests may follow.

This use of metrics and quality control is a best practice that should be of interest to all clients, especially in the current economy. This metric quality management process not only reigns in costs to a reasonable range, but also builds a strong case against obstructive opposing counsel. We all know the ones who did not get the Sedona “Cooperative Discovery Memo” and try to force excessive discovery costs for strategic purposes. There is every indication that courts will enforce the limited proportionality of discovery costs if protective orders are properly and timely sought with valid expert substantiation.

Kipperman v. Onex Corp.

A recent case proves a good example of what can happen using a protodigital approach without cooperation or timely, valid metrics. Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga., Sept. 19, 2008). The opinion concerns ongoing discovery of e-mail from Defendants’ backup tapes. There is no explanation in the opinion by Senior District Court Judge  J. Owen Forrester as to why the tapes had to be searched, but obviously there has been earlier problems in this case before the defendants’ latest motion for protective order. Here is Judge Forrester’s explanation of the case background on this issue:

During a hearing in January of 2008, the court ordered Defendants to produce e-mail from two electronic backup tapes selected by Plaintiff. Plaintiff selected two tapes and provided search terms. Defendants searched the mailboxes of seven people whose depositions Plaintiff had sought. Plaintiff filed a motion to compel arguing that Defendants should have searched all mailboxes on the two tapes.

First, one wonders why the two sides did not talk before the search about the keywords to be used and the custodians to be searched. The opinion makes it look like the defendants just blindly accepted the plaintiff’s keywords, and unilaterally decided to search only seven custodian PSTs (mailboxes). Naturally this approach did not work, leading instead to another hearing and another ruling preceding the instant order. Yes, the discovery litigation expenses continued to mount. Here is Judge Forrester’s explanation:

The court addressed this motion during the April 2008 hearing and ordered the Defendants to search all the mailboxes on the original two tapes as well as on an additional tape selected by Plaintiff. The court determined that despite the Defendants’ previous objections and representations, the backup tapes were producing meaningful discoverable information. The court did suggest, however, that Plaintiff be more artful with its search terms and that Plaintiff utilize a list of the people, provided by Defendants, to review whether all mailboxes needed to be searched. The court also granted Defendants the opportunity to narrow the search terms.

Now surely the defendants would talk and start to use sampling and metrics to narrow down the search terms and so reduce the cost of the project. The judge is practically begging them to do so. But no! Instead, defendants just go on using the plaintiff’s same old over-broad list of in-artful key words. Apparently no attempt is made to cull down the number of players either. Although I do not know the truth of what really happened here, from Judge Forrester’s report in this order, this appears to be a classic example of refusing to cooperate, or, better put, of cutting off your nose to spite your face. 

The Defendants did not provide this list of people; they did not narrow the terms. As such, they agreed to search and restore all the mailboxes with the search terms provided by Plaintiff.

When defendants ran the keywords on all of the boxes, apparently again with no advance sampling or other testing of any kind, they finally discovered that an incredibly large number of emails are produced by this search, and a high number of them are irrelevant. (No actual numbers were used in the opinion, again suggesting a complete lack of metrics.)

Defendants then moved the court for a protective order, not before. They sought relief from having to review and produce all of the results from the search; a search that they did not previously object to, or even talk about modifying. The judge’s reaction to that kind of scenario is not too hard to predict. He refused most of the protection requested, basically saying this was too little too late, you previously made your bed and it is too late to get out of sleeping in it now.

It is obvious from the order, however, that Judge Forrester was not unsympathetic to their plight of costly over-production and over-review from stupid search terms and custodian lists. Cooperation and a proper and timely use of metrics would have led to a far different result. Here is part of Judge Forrester’s explanation for denying the protective order:

Defendants contend that Plaintiff’s broad search terms resulted in thousands and thousands of irrelevant hits. For example, Plaintiff’s search terms included the word “republic.” The republic term sought to elicit e-mails regarding Republic Builders Products, one of the Magnatrax/ABCO acquisitions involved in this matter. Defendants claim that the search captured thousands of irrelevant pages due to one occurrence of the word “republic” often related to Onex business interests having nothing to do with Magnatrax in the “Republic of France,” “Republic of Ireland,” and “Czech Republic.”

Defendants’ actions have delayed the production of electronic discovery throughout this litigation. Defendants have consistently tried to minimize the likely value of this discovery. The court’s minimal forays into the electronic discovery that has been produced has shown just the opposite. Despite all of this, the court is not unsympathetic to the massive amount of discovery involved in this matter, the considerable burden of working with it, and the overproduction that often comes with e-mail production. Therefore, the court gave Defendants numerous tools by which to reduce the burden of e-mail discovery, including an opportunity to limit Plaintiff’s search terms and an opportunity to provide a list by which the number of peoples and the number of boxes being searched could be reduced. Defendants did not take advantage of these opportunities. Defendants must now lie in the bed that they have made. Thus, Defendants’ objections on the basis of relevancy and volume are DENIED. The court could deny Defendants’ requests with respect to Armtec and ONCAP for these reasons as well. However, the court finds it highly unlikely that these search terms and mailboxes will garner relevant, useful information and finds the parties’ and the court’s burden in working with this information to outweigh its relative usefulness. On these grounds, the court will GRANT Defendants’ request for relief with respect to these search terms and these mailboxes.

Conclusion

I am sure that the e-discovery costs in Kipperman have been high and are having a major impact on the case. You could blame Senior Judge Forrester, but would that be fair? Would that accurately reflect the conduct of the parties and their attorneys in this case? No. Like Ken Withers, I blame instead the protodigital mindset. Like the small child in Hans Christian Andersen’s tale, I suggest the obvious, that the emperor has no clothes. Contrary to popular belief among some litigators, e-discovery is not so simple that even a protohuman caveman lawyer can do it.

How do we fix this? How do we empower the legal emperors of America with legitimate garments? Do we surround them with flattering consultants, associates, and vendors eager to continue the profit-train? Do we exhort them to attend CLEs and hope that “brain-surgery made easy” really works? I think not. That has been tried, and if anything, we are finding that a little knowledge by dilettantes is a dangerous thing.

The long term answer lies with education in law schools and the slow take-over of the next generations of fully developed digital lawyers. But that will take years. In the meantime, as Ken Withers so aptly notes, gross mismanagement of e-discovery will have “catastrophic consequences for the ability of our civil justice system to deliver the just, speedy, and inexpensive determination of ANY action.” Therefore, in addition to the long term solution of law school education, we need a stop-gap solution, one that will cover us for the next five to ten years. 

Fortunately, that solution is already emerging, the development of e-discovery specialists; professionals who devote their full time and total efforts to legal/digital pursuits. This will come from old protodigital lawyers like me who force themselves into digital maturity through total immersion in the practice, and from younger lawyers like Patrick Oot, who devotes himself full time to managing Verizon’s e-Discovery team. The legal profession can save itself by the advent of specialists. This requires lawyers who do nothing but electronic discovery work, all nine steps. It also requires IT engineers who do nothing but e-discovery work to work with these lawyers.

This is already starting to happen in progressive law firms around the country. The specialists work with and support the trial lawyers. Once the litigators get used to the new arrangement, they come to accept it. Some even come to like it, even though it necessarily results in some diminishment of their control and authority. The delegation frees them to practice law in their usual protodigital manner, pretending the ESI the specialists find is just like paper. They are glad to leave the computer stuff to the geek-lawyers so that they can really practice law. These are at least healthier delusions.

The danger comes from the litigators so heavily entrenched in the old paper world mentality, that they view all discovery work as simplistic, worthy only of a young associate, except only key depositions. They think they know how to do e-discovery already. After all, anyone can do discovery; that has never been a specialty before. They know the rules, have read a few e-discovery cases, attended CLEs, and are adept at computers. They can supervise complex e-discovery work one day and complex commercial litigation the next. It is not really that hard – just hire a good vendor and quarrel over their bills. The sycophants surrounding them perpetuate and may even believe the delusion. The emperor’s new clothes are indeed marvelous to behold! That is, until the judge bursts the bubble or the client gets tired of paying the bills. That day is near my friends, which means an opportunity for the rest of us.