Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery

Electronic discovery jurisprudence boasts more published decisions with judges bemoaning attorney misconduct than any other area of law. Sometimes this judicial anger stems solely from the conduct of the parties to litigation, such as in U.S. v. Johnson, 2008 WL 2060597 (E.D. Va. May 15, 2008). In this criminal case, the defendant slipped altered emails to his counsel for use during trial. His attorney blew the whistle on his client and withdrew from representation as soon as he discovered what his client had done. However, in the majority of cases, the misconduct from which the judicial anger stems originates from either lawyer and client or the lawyer alone. See e.g., Phoenix Four, Inc. v. Strategic Resources Corporation, 2006 WL 1409413 (S.D.N.Y. May 23, 2006) (sanctions imposed against both client and attorney); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) (simple negligence alone is sufficient to justify adverse inference sanction, especially where plaintiff’s counsel was “purposely sluggish” in not producing the emails until after the trial had started).

Examples of unethical behavior range from outright intentional fraud, to gross negligence, and to simple attorney negligence. Surprisingly, even unintentional negligence can be unethical conduct. See e.g. Rule 1.1 ABA Model Rules of Professional Conduct:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Some experts believe that attorney incompetence in e-discovery is so widespread, that it presents a massive ethical crisis across the entire legal profession. Anecdotal evidence from e-discovery vendors confirms this. E-discovery vendors probably deal with more attorneys and law firms around the country than anyone. These vendors privately state that very few of their customers are technologically sophisticated. They often have humorous anecdotes regarding attorney requests illustrating their lack of technological competence. Of course, when you do not have sophisticated buyers, sellers tend to take advantage of that. This is one of the reasons e-discovery vendor costs are often shockingly high.

Negligence is a large part of the story on ethical misconduct in e-discovery, but not the whole story. Case law, exemplified by Qualcomm, suggests there is far more to the sanctions being imposed by judges all over the country than “just” lawyer incompetence. When I began my career in 1980, the imposition of sanctions, especially against attorneys, was a very rare event and motions based on spoliation were unheard of. Now they are commonplace. Why is this? It is a difficult and puzzling question.

Surely the profession has not suddenly become more sinister than before; although some suggest that the dominance of large firms as mega-business enterprises is causing a significant decline in overall ethics. Galanter, Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 Stan.L.Rev. 1867 (April 2008). There may be some truth to this, but a general decline in ethical standards does not explain why e-discovery jurisprudence is so rife with malfeasance.

Lawyers Are Not Keeping Up With Technology

Part of the answer lies with the incredible exponential technological advances occurring over the last twenty years. The concept of society has transcended the paradigm of a nation-based industrial world, to that of a global-based techno-centric world. The rapidity of this change in civilization is unprecedented in human history. This transformation has had profound effects on the nature and quality of evidence and the processes necessary to root out this evidence. See: Information Inflation: Can The Legal System Adapt? 13 Rich J.L. & Tech 10 (2007). In fact, e-discovery was birthed from this paradigm shift. See: Intellectual Foundation of Electronic Discovery.

Business and all other sectors of society have undergone this same rapid transformation. Yet, they seem to be rising to the challenge of new technologies better than the legal profession. True, there have been some spectacular ethical disasters in business, symbolized by the collapse of Enron and Arthur Anderson. But once again, you could point the blame on their attorneys, especially their in-house counsel, who failed to steer these companies towards conduct consist with the requirements of established law.

The failure of the legal profession to keep up with technology is primarily a result of two factors: (1) the archetypical personality of most lawyers; and, (2) the failure of most law schools to adapt to the modern technological revolution. Most lawyers are not strong in math, science, or engineering. There are exceptions, of course; we call them IP (Intellectual Property) lawyers. But for the most part “The Law” attracts people who are gifted with a particular kind of liberal arts logically-based intelligence that inclines them to “computer-phobia.” In fact, the LSAT admissions test, designed to sort and rank potential law school applicants, solely tests logical reasoning and reading comprehension skills. A student could easily achieve a perfect score on the LSAT without knowing how to plug in a computer.

Most law schools have ignored the problem of e-discovery altogether, and offer no classes on the subject. There are a few notable exceptions, such as Cumberland’s Law School with Judge John Carroll, and the University of Florida’s Law School with Holland & Knight’s Bill Hamilton. These schools are the rare exception to the rule and most law schools have not stepped up to the plate to address this problem.

Since the root of the lawyer Luddite mindset is grounded in legal education, the answer also lies within the legal education system. Law schools must include electronic discovery in their standard curricula and broaden their recruitment and admission standards to include the technologically gifted.

The prevalence of technology in the law is a strong driving force behind the decline of ethics in e-discovery. This is clear. But this observation, in and of itself, does not provide a theoretical construct to understand the root of unethical conduct in e-discovery. Such understanding requires a thorough analysis of the rules of ethics and observation of legal practice. This article presents such an analysis, and offers a theory defining the root of ethical malfeasance in e-discovery situations. I will present this theory as a thesis at a symposium on e-discovery ethics at Mercer Law School in November 2008, entitled “Ethics and Professionalism in the Digital Age.”

This symposium will be the first academic event that I know of to seriously address issues of e-discovery ethics. The Key Note speech will be provided by Professor Monroe H. Freeman, one of the country’s leading scholars on legal ethics. There will be two ethics panels. The first will be led by Jason Baron who will present his ethics thesis entitled: “E-Discovery and The Problem of Asymmetric Knowledge: Some Thoughts on the Ethics of Search and Information Retrieval In Light of Recent Case Developments.” The panel to respond to his thesis will be Judge John Facciola and Chilton Varner of King & Spalding. Next, I will present my thesis summarized here entitled: “The Wicked Quadrants: A Theoretical Construct for Understanding Unethical Conduct in e-Discovery.” My panel to respond will be Judge David Baker and Bill Hamilton. An edited transcript of the proceedings will be published in the 2009 Spring Edition of the Mercer Law Review.

The Wicked Quadrants: A Rubric to Understand the Root of Unethical Conduct in e-Discovery

There are four fundamental forces at work in e-discovery, which, when considered together, explain most attorney misconduct: (1) a general lack of technological sophistication; (2) over-zealous attorney conduct; (3) a lack of development of professional duties as an advocate; and, (4) legal incompetence. These so-called “Wicked Quadrants” are depicted in the diagram at the top, and again in the cross format diagram below. The four-arrow cross-graphic is designed to show how these forces interact in an imbalanced fashion to explain lawyer misconduct. 

The previously discussed radical transformation of society is the first and foremost of the four factors to consider to understand e-discovery misconduct. The other three factors arise from general ethical considerations that are not in any sense unique to electronic discovery and are addressed in the American Bar Association’s Model Rules of Professional Conduct.

These four criteria interact with each other in varying ways to explain the many forms and types of attorney e-discovery misconduct. Unethical or illegal behavior by parties to litigation themselves are influenced by different factors, including raw emotional ones such as greed, fear, and hate. These four criteria do not apply to the parties to litigation, but rather only their attorneys.

Duty to Clients v. Professional Duties

The Wicked Quadrant consists of two fundamental and diametrically opposed duties applicable to all attorneys. On one side of the scale lies an attorney’s duty to clients, and on the other lies an attorney’s ethical duty to the profession, including opposing parties, opposing counsel, and the courts.

Four rules regarding an attorney’s ethical duty to the profession are relevant to e-discovery: Rule 1.1 Competence; Rule 3.2 Expediting Litigation; Rule 3.3 Candor Toward the Tribunal; and, Rule 3.4 Fairness to Opposing Party and Counsel. Yet in most instances of e-discovery misconduct, these four rules are outweighed by two rules codifying an attorney’s duty to clients: Rule 1.3 Diligence and Rule 1.6 Confidentiality.

The first, and by far the most “wicked” of the client duty rules, is the model Rule 1.3 Diligence.

Client-Lawyer Relationship - Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.

As the Commentary for the Model Rules of Professional Conduct explains:

Rule 1.3 Diligence - Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.

Of course a client will readily appreciate the actions taken by their lawyer to fulfill these duties. In fact, the Commentators recognize the inherent dangers of excessive zeal, and warn about excesses, but stop short of actually banning them:

A lawyer is not bound, however, to press for every advantage that might be realized for a client . . . . The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

A lawyer is not bound to press every advantage, but not prohibited either. They are not required to use offensive tactics, but such tactics are not forbidden by ethical code. Naturally, lawyers frequently engage on over zealous representation and clients normally react favorably to this behavior. The client is, after all, in a dispute with the opposing party and emotions frequently run hot, even in commercial litigation between large businesses.

The second client-directed ethics rule, Rule 1.6, also encourages misbehavior at times, albeit not nearly as often as the zealous advocacy rule.

Rule 1.6: Confidentiality of Information.
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

The secrecy rule of ethics, buttressed by the attorney-client privilege and attorney work-product privilege, has served as a cover, and sometimes excuse, for a host of misconduct. The lawyer may know that his client has not disclosed all of the harmful email, or has engaged in a deliberately negligent search, but feels constrained by his duty of confidentiality. This duty is antithetical to the transparency of e-discovery conduct that facilitates cooperation between counsel and the court.

The impact of this rule is obvious in the Qualcomm case, where outside counsel tried to blame the non-disclosure of thousands of emails on their client. When the massive fraud designed to conceal highly relevant email was later discovered, one of the excuses offered by outside counsel was that counsel could not disclose their suspicions of fraud as they were prohibited by the California state law equivalent of model Rule 1.6

Three rules of ethics based on duties to the profession as a whole are particularly relevant in e-discovery. These rules, in theory, should balance and constrain the two client-centered rules. These rules act as three angels whispering in the good ear of each litigation attorney. They are, in pertinent part:

Advocate - Rule 3.2 Expediting Litigation.
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Advocate - Rule 3.3 Candor Toward The Tribunal
a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . .
(3) offer evidence that the lawyer knows to be false. . . .

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Rule 3.4 Fairness To Opposing Party And Counsel
A lawyer shall not:
(a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; . . .

When attorney e-discovery misconduct arises, it can be attributed to failure of an attorney to follow the counsel of one or more of these three ear-whispering angels.

There is, however, yet another rule of professional conduct that frequently comes into play in e-discovery, the rule of professional competence.

Advocate - Rule 1.1 Competence

A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.1 falls on the side of professional duties, but is in many respects unlike the three angels. Indeed, it has always enjoyed a special prominence in our legal tradition for a variety of reasons, including pride in quality craftsmanship. Competence has also played an important role in tempering excessive zeal in diligence. By tradition, the most highly skilled do not need to resort to adversarial excess to prevail. Their competence alone will carry the day without use of bluster and sharp elbows.

These six ethical duties, two on the side of client representation and four on the side of the court and profession as a whole, should, in theory, be in balance. But in practice, especially in the field of e-discovery when unethical conduct is involved, these rules do not balance. The duties to the client are given far more weight by many attorneys than the duties to the profession.

 

 

 

 

 

The reason for this imbalance is easy to understand. The client duties have built-in economic incentives. Their benefits are obvious to the client. When an attorney carries out these duties, the fees for the attorney’s services are more likely to be paid. The client is likely to further reward this behavior by requesting additional legal services. This then leads to secondary reward for this conduct by the law firm in which the attorney is a member. As law firms grow larger and closer to businesses, these rewards are intensified. Bluntly, money is the thumb on the scale and greed has corrupted attorneys’ ethical compasses.

Conversely, when an attorney discharges professional duties, the benefits to the client, if any, are only secondary and remote from the client’s view. For instance, the client might not realize that candor to the tribunal makes their attorney more effective in advocating their position. The discharge of these professional duties might not only be unappreciated, but in many circumstances, they might be resented. For example, a client might not want to disclose an email that significantly damages their case, especially if they naively think they could easily get away with hiding it and win. They might resent it when their lawyer discloses the email anyway, especially if this later leads to loss of the case.

Fulfillment of these professional duties may in some circumstances lead to conflicts between attorney and client. It can also often lead to passive resistance such as delays in payment of bills or refusals to pay altogether. Even if a fee is paid, many clients will think twice in retaining that lawyer again, since they may resent the divided loyalty between professional obligations and zealous representation. An unsophisticated client may not realize that every lawyer worth his or her salt takes both these obligations seriously. The negative disincentive to listen to the three angels is magnified by the law firm in which the lawyer is a member. They only see an attorney without a growing client base. They may respect their partner’s ethics, but they will rarely reward such behavior economically.

Since the fulfillment of professional duties has no built-in financial reward, and in fact can sometimes be costly, it often is outweighed by an attorney’s economic interests. This may explain why the Bar has developed so many professional duties and rules over the years. It was done in the vain hope that the sheer quantity of the rules would outweigh the obvious financial disincentives. They have not. The state bar associations could promulgate ten more rules requiring professional conduct and it would not put these competing interests in balance. The fundamental issue is that financial rewards are primarily offered for only one side of the equation. Further, violations of the professional duty-type rules are only rarely detected, and when complaints are filed, the disciplinary actions imposed are relatively light. The bar associations are primarily focused on trust account violations, not candor to the tribunal or fairness to opposing counsel.

Attorney Competence

Attorney competence and corresponding model Rule 1.1 are such powerful forces in the legal tradition in the United States that it is an over simplification to solely look at the problem of ethics in e-discovery in a dualistic manner, client versus profession, as we have in Part One of this essay. Another element of complexity must be added to get a better understanding of the problem. Competence should be understood as its own ethical force and the issue should be triangulated as shown below.

This tripartite structure is a better diagram to understand the true dynamics of legal practice. Legal competence serves as an independent upward force, along with professional duties, to counter-balance the pressures and temptations involved with fulfillment of duties to clients. The forces of Law and Profession work hand-in-hand to offset the demands of some clients, typically implied, to prevail over their adversaries at all costs.

Most of the time the temptations of greed and power do not cause “lawyers to behave badly.” Certainly, lawyers do not make a practice of lying to courts and opposing counsel, even though they could probably get away with it and maximize their income in the process. There is more to this picture than simple economics. The law, after all, attracts many who are concerned with justice and care about doing the right thing. Most lawyers have strong moral fiber and need but little encouragement to do the right thing. The vast majority of lawyers are more than pen-and-quill mercenaries. Integrity, professional pride, and competence temper their financial motivations. Moreover, some enlightened clients recognize and financially reward professional competence and are influenced by professional reputation in the lawyer selection process.

Unfortunately, most clients are not in a position to evaluate attorney competence. Only repeat litigants, typically large corporations, have enough experience with litigation to gain knowledge of the competence of litigation attorneys. The largest litigant class in the U.S. is the insurance industry. Insurance companies make up the bulk of every court’s docket. In the past, they would routinely employ the best skilled attorneys in every locale and were willing to pay for such quality representation. Although the defense bar is still usually of superlative quality, more and more insurance companies today are driven primarily by cost. They are unwilling to pay for quality representation. In fact, low rates demanded by insurance companies have become notorious. Over the past ten to fifteen years this “penny wise and pound foolish” approach by the insurance industry has driven many of the best defense practitioners into other areas of practice. These seemingly sophisticated clients should know better.

Since legal competence seems to be rewarded economically less and less in all fields of litigation, the decline of pecuniary benefit to attorneys does not fully explain the dramatic decline of ethics in e-discovery. Here, the decline has been disproportionately great. The explanation lies in the previously mentioned competence gap in e-discovery by most trial lawyers. This deficiency, coupled with the dramatic changes in technology over the last few decades, has led to our current tenuous ethical position.

To further test and weaken the restraints which competence and other professional duties typically place upon unethical conduct, the strategy demanded in e-discovery, when it is performed competently, is fundamentally different than traditional adversarial strategy. When practitioners in e-discovery attain a high degree of technical competence, they realize that the cooperative model must be employed. In fact, I have yet to meet an experienced attorney in this field who does not agree with this proposition.

Transparency and cooperation, or at least attempts at cooperation, are imperative for e-discovery to be performed in an efficient and economic manner. This is discussed at length in last blog: Hospital Defendants Martyred in the Cause of Cooperative e-Discovery. This new model of competence is at odds with the training of most experienced attorneys, and to them appears to be at odds with model Rules 1.3 and 1.6, diligence and confidentiality. While the cooperative model of e-discovery is not at odds with the concept of “diligence,” this concept is hard to understand without practical experience in the area. Most attorneys today, especially litigators, mistake “diligence” with adversarial excess. As the Sedona Conference Cooperation Proclamation points out, cooperation in discovery is perfectly consistent with zealous advocacy: “Cooperation does not conflict with the advancement of their clients’ interests - it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.”

Technology Incompetence

Attorneys of today are, on the whole, more competent and better prepared than attorneys of the past. Certainly the standards for admission to law schools are steadily increasing and it has attracted many very intelligent people. Further, the vast majority of the people in the legal profession have very solid moral ethics and good judgment in this area. Indeed, the screening of applicants by state bar associations appears to be more severe and careful than in was in the past. Yet, the growing bad behavior of lawyers in the field of e-discovery is irrefutable.

The challenges and inherent conflict between duties to clients and professional duties have been present in the law for a long time. The balance appears to have shifted in the past few decades toward the duties to clients. Some believe this can be explained by the general shift of law firms to more business-like operations. See Eg. Galanter, Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, supra.  Still, this shift in business models does not fully explain the glut of bad behavior in e-discovery attorney conduct.

E-discovery is particularly vulnerable to ethical indiscretions due to the same exponential explosion of technology that created the field of e-discovery to begin with. Keeping up with ever changing technology is a challenge for all legal practitioners. But if lawyers in other fields fail to keep up technology, it does not usually affect their core competency as an attorney. They can be technologically incompetent and still practice at a very high level of legal competence. Their professional competence can thus serve as a strong buoying force to protect them from the temptations of unprofessional behavior.

But this is not so with e-discovery. In this field, and this field alone, your technological incompetence has a direct, and very severe negative impact on your professional competence to do e-discovery work. The challenges of technology act as a countervailing force to legal competence as shown in the diagram below.

Since most attorneys today called upon to try to do e-discovery have very limited technology competence, they necessarily also have limited legal competence to do this work. Thus the buoying force of competence is far less, or absent entirely, to restrain excessive advocacy. Instead, the added challenges of technology serve as an anchor to bring out the basest behaviors. As shown in the diagram below, with the added weight of technological challenges, the upward forces of legal competence and duty to profession are now insufficient to counter the temptations arising from duties to clients. The influence of technology greatly strengthens the downward forces and leads to an overall lowering of ethical conduct.

Attorneys not competent in technology are well aware of their situation, although they will often go to great lengths to hide it from others. This creates a precarious situation where attorneys are not comforted by legal competence, but are still pressured by clients and the economy. This leads many to make bad decisions and choices when it comes to compliance with the dictates of model Rules 3.2 Expediting Litigation, 3.3 Candor Toward the Tribunal, and 3.4 Fairness to Opposing Party and Counsel.

Finally, it is important to note that no one is fully competent in all fields of technology that may be encountered in e-discovery. It might be possible for complete competence in the legal side of e-discovery. A few may master all aspects of the many laws and rules impacting e-discovery. But no one has complete mastery of all of the software and hardware systems involved. Every modern lawyer is stressed and challenged by the enormous tidal wave of technology we have “enjoyed” in the past few decades. Each attorney is a perpetual student, who must strive to keep abreast of the rapid inventions and progress of the unstoppable tidal wave of technological evolution.

The Wicked Quadrants

The four factors shown below and at the beginning of this blog constitute the basic components underlying unethical behavior in e-discovery. The diagram below adjusts the size of the four quadrants to reflect the imbalance that leads to lawyer misconduct.

In the field of e-discovery I place most of the blame on the incredible challenges of technology. No other generation of lawyers in history has ever faced this kind of rapid change. It is no wonder that it has shifted the delicate balance otherwise in effect between the competing forces of client satisfaction, competence and professionalism. Technology challenges have undercut and weakened legal competence, which in turn has strengthened some lawyers perceived duties to clients at the expense of duties to the profession. Attorneys who succumb to unethical behavior in e-discovery do so because they give far greater weight to the financially rewarded duties-to-client over the countervailing duties-to-profession, duties intended to act as restraints upon excessive advocacy.

This represents a situation of excessive adversarial practice not adequately tempered by duties to the profession or by legal competence. Instead, overly high levels of technology challenges aggravate the imbalance. This common situation today explains the high incidence of lawyer misconduct in e-discovery.

This analytical rubric suggests a remedy to the problem it illustrates. Lawyers need more legal training in e-discovery and in technology. The professional advocacy restraints to excessive zeal must also be strengthened and better understood. Lawyers must come to understand that they have a sacred duty to expedite litigation, have candor to the judge, and be truthful and fair to the opposing party and opposing counsel. These things are more important than money. They are at the very core of our profession. They separate the Law from mere business. They justify the powers entrusted in our profession since the days of the founding Fathers.

Integrity and the abhorrence of unethical conduct cannot be forced by the enactment of more rules. Only better education and the strict enforcement of our current rules will get us there. This enforcement requires much greater energy and attention to these issues by both the state bar associations and the judges who are often sad witness to such misbehavior. All too often such misconduct is tolerated. In the rare occasions where disciplinary actions are taken, or sanctions are imposed, they are far too weak to deter similar conduct by the rest of the bar. The Qualcomm case provides a perfect example of this situation. Although the court spends hundreds of pages in multiple decisions describing the misconduct of Qualcomm’s attorneys, including direct lies to the judge in the midst of a trail, to date, no attorney or law firm involved has been sanctioned. Further, although there have been threats to refer the attorneys to the California Bar for disciplinary action, as of yet, this has not happened.

Hospital Defendants Martyred in the Cause of Cooperative e-Discovery

A class action against eight hospitals in Detroit produced a “gotcha-type” e-discovery ruling that unfairly punished the hospitals for trying to cooperate with opposing counsel. Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E.D.Mich. July 7, 2008). Here is Magistrate Judge Donald A. Scheer’s own words at the end of his opinion:

Having elected to martyr itself rather than to seek relief in a timely fashion, DMC seeks an order imposing the cost of its choice upon its opponents. I find neither substantive merit nor equity in its request. IT IS THEREFORE ORDERED that Detroit Medical Center’s Motion to Require Plaintiffs to Share Third Party Vendor Costs of Electronic Discovery is denied.

Judge Scheer held that the defendants had elected to martyr themselves by cooperating with plaintiffs and relying upon a stipulation with plaintiffs. The stipulation reserved the parties rights to do e-discovery first and seek cost-sharing later. Judge Scheer’s use of the inflammatory word “martyr” is ironic, and so is his reliance upon the Sedona Principles to try to justify his ruling. (To pile the irony on even higher, Judge Scheer misspells Sedona throughout the opinion and instead calls it the “Sadona” Conference.)  It is ironic because the Sedona Conference’s latest publication is  The Sedona Conference® Cooperation Proclamation. The Proclamation encourages parties to reach agreement and specify plans. That is exactly what the defendant hospitals did here, but instead of rewards and accolades, they were punished. 

The eight hospitals are indeed martyrs, but not in the self-imposed manner that Judge Scheer’s opinion suggests. They are martyrs to the cause of cooperative e-discovery that the Sedona Conference and many others promote. Their martyrdom was not voluntary as the judge sarcastically suggests. It was caused by opposing counsel and the very judge who labeled them such. Cason-Merenda is bad law, but is nevertheless important. It is significant and deserves attention because it demonstrates that the cooperative approach will not work unless the judiciary understands and supports cooperation in both word and deed.

Defendants Cooperated As They Should 

The defendants here met with plaintiffs at the beginning of the case and agreed to certain e-discovery. Instead of reaching an agreement as to cost sharing at this early stage, which is nearly impossible, especially before anybody really knows what the costs will be, both sides agreed to defer the issue of cost sharing. They agreed to reserve their rights to later move for cost sharing. The court then approved the stipulation and made it into an order of the court. After that happened, defendants should have been able to rely on the order, and make production first, without concern of waiver of rights. That is in fact what they did. Only later did they discover that reliance on this court’s order put them on a path to martyrdom.

The six defendant hospitals acted in a cooperative manner to advance the process by doing the e-discovery work required and making the production. The opinion does not set forth any of the details, but in a class action like this, involving six major hospitals, the e-discovery work would almost certainly have been extensive and complicated. It is very hard to predict in advance the cost of this kind of work. That is the practical reason parties should be free to agree to defer this issue.

After defendants first production, when they knew the actual costs, as opposed to speculative predictions, they were then in a position to evaluate whether cost sharing was justified. Apparently they thought it was, and so contacted plaintiffs counsel to try to reach an agreement.  When plaintiffs’ counsel would not agree to any cost sharing, defense counsel was forced to seek relief from the court by filing a motion.

These were not the crazed actions of a deluded martyr. Defense counsel was following the cooperative approach built into the rules and modern principles of e-discovery. They should not have been punished for trying to cooperate and work things out before filing motions. At the very least, the court should have provided them with their day in court and heard the issue of whether cost sharing was justified. But that is not what happened in Cason-Merenda.

Instead, the plaintiffs ceased their prior cooperative attitude, and went into full adversarial mode. They not only opposed the motion on its merits, which is certainly fair, but they also challenged defendants right to bring the motion at all. Their procedural objection was unfair and excessive adversarial conduct because it was contrary to their prior agreement. They had agreed that both sides preserved their rights to later seek cost sharing, but when defendants attempted to asset their right, they ignored their agreement. Instead, Plaintiffs pulled out all stops to try to prevent defendants from being heard. They confused the judge with arguments that defendants must have waived their rights to seek cost shifting, and so the judge should not even address the more complicated merits of motion. 

At this point, the judge should have put aside plaintiffs’ technical, forget-the-stipulation waiver arguments. He did not. Instead, the adversarial attack worked, and the procedural objections were sustained. What kind of message do you think this sent to the parties in this case?

Defendants Were Unwilling Martyrs

The Court refused to hear the merits and instead denied defendants motion on procedural grounds. Judge Scheer held that defendants should have moved for cost sharing before they incurred the costs. Never mind the stipulation. He held that defendants had waived any right for cost sharing. He called them martyrs who had voluntarily incurred the e-discovery costs, and now, after martyrdom, it was too late to seek any reimbursement or other relief.

Judge Scheer spent most of the decision explaining how the rules and law contemplate the filing of motions for cost sharing before costs are incurred. I think he is right on that point, as a general matter. But in this case, the parties entered into a contrary stipulation and order, and that should have changed everything. It did not, and thus fundamental principles of judicial estoppel were violated. Judge Scheer in effect vacated his prior order after the defendants had relied upon it. By this action, he avoided addressing the complex merits of defendants’ motion for cost sharing and punished them for taking a cooperative track. 

At the hearing on defendants’ motion, they protested the plaintiffs’ argument that they had waived their rights. Defense counsel pointed out that they had relied on the stipulation and order. Judge Scheer made short work of that argument in his written opinion by pointing to a provision in his scheduling order that required parties to file discovery motions within 14 days after a discovery dispute arises. He held this provision trumped the stipulated order. He determined, based on an affidavit filed by one of the plaintiffs’ attorneys, that a discovery dispute existed between the parties on cost sharing no later than April 4, 2008.  The defendants kept trying to resolve their dispute without judicial intervention after that date and did not file a motion until May 20, 2008. That was too late according to Judge Scheer, who, at the urging of plaintiffs’ counsel, determined that the deadline was April 28th.

Fortunately, I rarely see this kind of hyper-technical “gotcha-type” ruling in U.S. District Courts. They may make that kind of observation about questionable timeliness, but then they usually go on to address the merits of the motion. This was not done here. The judge refused to even consider or engage in any type of reasoned evaluation as to whether cost shifting was justified. 

Martyrs to the Cause of Cooperation

Defendants here are true involuntary martyrs, worthy of admiration. They followed exactly the kind of collaborative process contemplated by the new Rules, specifically Rule 26(f), Federal Rules of Civil Procedure. It is also the kind of cooperative arrangement contemplated by the Sedona Conference in its latest publication: The Sedona Conference® Cooperation Proclamation. The Proclamation encourages attorneys, parties, and judges to move away from traditional adversarial models of discovery into more cost effective and balanced collaborative approaches. The cooperative model Sedona promotes follows the new rules and encourages parties to reach agreement and specify plans. Here is the introduction from the Cooperation Proclamation:

The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (”ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes - in some cases precluding adjudication on the merits altogether - when parties treat the discovery process in an adversarial manner.

The Sedona Proclamation goes on to explain how cooperative discovery is not only an economic imperative, but also an ethical one.

Cooperation in Discovery is Consistent with Zealous Advocacy.

Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests - it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.

Lawyers preparing cases for trial need to focus on the full cost of their efforts – temporal, monetary, and human. Indeed, all stakeholders in the system – judges, lawyers, clients, and the general public – have an interest in establishing a culture of cooperation in the discovery process. Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge. It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by “gamesmanship” or “hiding the ball,” to no practical effect.

The effort to change the culture of discovery from adversarial conduct to cooperation is not utopian. It is, instead, an exercise in economy and logic. Establishing a culture of cooperation will channel valuable advocacy skills toward interpreting the facts and arguing the appropriate application of law.

But what happens when one side cooperates and the other does not? As this case shows, it can be dangerous. “Turn the other cheek” may be a noble thought, but it will not work in litigation. The Sedona Cooperation Proclamation notes this common problem at page 2:

And there remain obstreperous counsel with no interest in cooperation, leaving even the best-intentioned to wonder if “playing fair” is worth it.

They note the problem, but offer no solution, at least not in this short proclamation. The only solution I know of is to try to turn the aggression on the attacker, a kind of aikido-like maneuver that I discussed in Adversarial Search, a “Perfect Barrier” to Cost Effective e-Discovery, and One Litigant’s “Aikido-like” Response. That is exactly what the eight hospitals did in Cason-Merenda, but instead of stepping in, the judge stepped out. The judge should have rewarded the good behavior; he should have at least considered the defendants’ motion. Instead, he fell hook, line, and sinker for the plaintiffs’ adversarial gamesmanship and joined in the attack. He even added insult to injury by calling defendants martyrs; all while invoking the ironic name of “Sadona.” Sad indeed!

Cason-Merenda is important because it shows that the collaborative approach embodied by the Sedona Proclamation will not work without the active support and participation of the judiciary. Unless judges encourage and support the collaborative model, the presence of one obstreperous counsel in a case will act like a rotten apple in a barrel. I know that Sedona understands this well. In fact, on October 7, 2008, they are having a “virtual press conference” wherein they will release a list of state and federal judges who have endorsed the Proclamation. Be on the lookout for this. The courtrooms of these judges should be martyr-free zones.

The Cooperation Proclamation calls the move from adversarial to cooperative discovery a fundamental paradigm shift. Sedonda thinks we can get there by a three part process:

Part I: Awareness - Promoting awareness of the need and advantages of cooperation, coupled with a call to action. This process has been initiated by The Sedona Conference® Cooperation Proclamation.

Part II: Commitment - Developing a detailed understanding and full articulation of the issues and changes needed to obtain cooperative fact-finding. This will take the form of a “Case for Cooperation” which will reflect viewpoints of all legal system stakeholders. It will incorporate disciplines outside the law, aiming to understand the separate and sometimes conflicting interests and motivations of judges, mediators and arbitrators, plaintiff and defense counsel, individual and corporate clients, technical consultants and litigation support providers, and the public at large.

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

Conclusion

The Proclamation came too late for the hospital defendants in Cason-Merenda. But hopefully their martyrdom will not be in vain. Cason-Merenda should drive home the point that judiciary buy-in and training is paramount to this movement’s success.

Judges must not allow themselves to be duped into punishing parties who try to cooperate. They should not reward traditional gamesmanship. They should be trained to see through the clever smoke screens that experienced litigators can emit. If they are not sure, they should err on the side of ruling with the lawyers that cooperated. Hyper-technical “gotcha” litigation has no place in cooperative e-discovery. It should not be tolerated by the lawyers or the judges. If a District Court Judge sees a Magistrate ruling like Cason-Merenda, they should not hesitate to reverse it.

Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass

A distinguished group of trial lawyers recently completed a study on litigation which concluded that the main problem with the U.S. legal system today is e-discovery. Interim Report & 2008 Litigation Survey. Not too unexpectedly, they placed the blame squarely on poor rules, bad law, and judges. They overlook their own role in the problem. The report does not even acknowledge lawyer incompetence with technology as one of causes of the morass. Like the profession as a whole, including most law schools, they are blinded by their own shadow. They have not yet realized the insights of Walt Kelly who said in Pogo: “We have met the enemy and he is us.”

I agree with the eminent trial lawyers and academics that conducted this study that our rules and law need reform, and our judges need to do a better job. But, in my opinion, the fundamental cause of the e-discovery problem is the failure of the legal profession, especially the trial bar, to keep up with the rapid changes in technology. That is why new rules and legislation alone will never fix the problem. Such reforms must be coupled with an aggressive attorney education program that starts in law school. Some law firms today are starting to awaken to this problem and set up internal training programs. So too are a few law schools. But the vast majority of our profession still refuses to own-up to the competency issue. They either ignore the problem of e-discovery all-together, like most academics, or they acknowledge the problem, like this report does, then blame anyone other than themselves. 

Interim Report & 2008 Litigation Survey

This interim report, aside from its competency shadow-blindness, is excellent and well written. It is a joint project of the American College of Trial Lawyers task force on discovery and the Institute for the Advancement of the American Legal System, a group based out of the University of Denver. I applaud these groups for recognizing the problem and trying to do something about it. There insights go well beyond e-discovery and I recommend a full reading.

This is an interim draft report. Hopefully they will take these criticisms as constructive and revise the final report to address the competency and education issues. Here is how they begin the report:

The joint study grew out of a concern that discovery is increasingly expensive and that the expense and burden of discovery are having substantial adverse effects on the civil justice system. There is a serious concern that the costs and burdens of discovery are driving litigation away from the court system and forcing settlements based on the costs, as opposed to the merits, of cases. Recalling that one of the original purposes of the discovery rules was to avoid surprises and to streamline trials, many are now concerned that extensive and burdensome discovery jeopardizes the goal of Rule 1 of the Federal Rules of Civil Procedure and of the rules in those jurisdictions that have adopted similar procedures: a “just, speedy, and inexpensive determination of every action and proceeding.” In fact, 81 percent of the respondents to the survey conducted by the Task Force said the civil justice system was too expensive and 69 percent said that it took too long to resolve cases. 

I certainly agree with all of these points. The report then goes on to share the results of a survey conducted of the practicing attorney members of the American College of Trial Lawyers. This is a balanced group of plaintiff and defense oriented trial lawyers who must be nominated for membership and are screened for competency. It is considered an honor to distinguish yourself enough to be invited to join. The Trial Lawyers surveyed all of their 3,812 “Fellows,” as they call them, and 1,494 responded; a pretty high rate. The report brags that, on average, the respondents ”had been practicing law for 38 years.” Of course, what this means is that this is a very old group.

Correlation Between Age and Tech Savvyness

In my experience, as a general rule, the older you are, the more clueless you are about technology. Look at Senator John McCain for instance, who candidly admits he cannot use a computer and relies entirely on his wife. In fact, one of his young advisers insisted, and even bragged with a straight face, that McCain is indeed aware of the Internet. This age/tech-ignorance correlation is especially true with trial lawyers, who tend to focus all of their technical attention upon the finer points of persuasion and the law, not on computers and algorithms. After all, if they had liked math and science, they would have gone to medical school.

I have been a trial lawyer myself for most of my career. To be honest, although I was pretty good at it, I was usually too distracted and interested in computers and technology to be one of the greats, not to mention the fact that my cases almost never actually went to trial. One side or another would almost always blink at the last minute and decide not to roll the dice on a judge or jury. I stopped doing general litigation work entirely over two years ago, so that I could devote myself full time to what I really love, e-discovery.

In my work as a litigator, I have been fortunate enough to get to know many great, honest-to-God trial lawyers. They are a smart and gregarious group, but most are almost totally inept when it comes to computers. Some even secretly still use their secretaries to send email. In fact, I recently heard about a senior litigation partner in a top national firm (not my own) who sent out a memo to his young associates asking if any of them knew how to use “The Google” to try to find out something for him. Of course, they all found that hilarious. Well, at least the senior partner had heard of Google and knew it might be useful, even if he had never actually used it himself (way too complicated). I suspect that this same partner is probably a member of the College of Trial Lawyers and no doubt a big supporter of Senator McCain.

Don’t get me wrong, these trial lawyers are probably all terrific in a court room, and could clean my clock in any jury trial. Just don’t ever ask them to turn on a computer, much less process and review ESI in an economical manner. To them it is just a big nightmare, primarily, I propose, because they are on foreign ground and do not know what they are doing.

The Fellows Analyze Litiation

Here is how these College of Trial Lawyer Fellows analyze the problem with litigation in the Twenty-First Century:

The discovery system is, in fact, broken. Discovery costs far too much and has become an end in itself. As one respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.” Electronic discovery, in particular, clearly needs a serious overhaul. It is described time and time again as a “morass.” Concerning electronic discovery, one respondent stated, “The new rules are a nightmare. The bigger the case, the more the abuse and the bigger the nightmare.” 

In particular, 87 percent agree that electronic discovery, in particular, is too costly, and 76 percent agree that electronic discovery issues are not well understood by judges. (sic)

So the blame game begins, and the “new rules” and judges are the prime suspects. In fact, the new rules, if properly understood, are a powerful tool to help us all out of the morass. The other easy target is our underpaid judges. They should fix things for us. On that point the report states: 

Judges should take more active control of litigation from the beginning. Where abuses occur, judges are perceived to be less than effective in enforcing the rules. According to one respondent, “Judges need to actively manage each case from the outset to contain costs; nothing else will work.”

I do agree with this point. Judges should be more active, especially to help manage costs, and as I have often pointed out, they should not wimp-out in the face of intentional abusive conduct by counsel. Still, judges need to be educated first, just like the rest of the profession, and given more time to work on each case; otherwise, their active control may well do more harm than good.

Here are some of the more interesting statistics from the survey:

Nearly 60% of Fellows reported having cases that raise electronic discovery issues.” (My Comment: this means that 40% of these distinguished Fellows have never had a case with electronic discovery issues! And yet, this same group, 87%, agree that electronic discovery is too costly.) 

Nearly 77% of Fellows say that courts do not understand the difficulties in providing e-discovery;

Over 75% of Fellows agreed that discovery costs, as a share of total litigation costs, have increased disproportionately due to the advent of e-discovery;

71% of Fellows say that the costs of outside vendors have increased the cost of ediscovery without commensurate value to the client;

63% of Fellows say e-discovery is being abused by counsel; and

Less than 30% of Fellows believe that even when properly managed, discovery of electronic records can reduce the costs of discovery.

Candid Thoughts of Trial Lawyers about e-Discovery

Appendix B to the report consists of select quotations from the Fellows who responded to the survey. Many of these quotes pertained to e-discovery and you may find a few of them interesting, if not revealing:

“The new rules on discovery of e-mail will make litigation too expensive.” (I disagree with that one. The new rules do not even mention email. In fact, email discovery has long been too expensive, but it is not because of the rules (except maybe the old rule allowing discovery of irrelevant information, so long as it is reasonably calculated to lead to admissible evidence). It is too expensive because lawyers and judges do not know what they are doing, and do not know how to properly cull and review email, and because clients are disorganized pack-rats. Many of the e-discovery vendors are also misinformed, but often they do know better; they just have no pecuniary interest in aggressive culling. Some may even seek to line their own pockets in inflated discoveries.)

“We have sacrificed the prospect of attainable justice for the many in the interest of finding that one needle in the forest of haystacks.” (I agree with that one. In the field of ESI this attitude arises out of misunderstanding and misapprehension of the staggering volumes of ESI now stored by most pack-rat dominated companies, and the impossibility to find all the needles. Requesting parties and judges need to understand that only reasonable efforts are required, perfection is unattainable, and cost should be the primary factor in determining reasonable proportionality.)

“E-discovery is a morass ─ to quote Justice O’Connor.”

“In many cases the cost of doing e-discovery may run into the millions of dollars (in some cases to each side). The cost of complying with e-discovery has become an impediment in the way to the doors of the Court House.”

“My belief is that the greatest change that could be made is to reduce the scope and expense of discovery. The latest e-discovery adds incredible layers of work at the client’s business and with its staff, as well as the lawyers, and has spawned a new layer of consultants all its own (a very bad sign), if one is looking to speedy and inexpensive, while being fair, justice.”

“The courts need to get a better grip on e-discovery. The expense involved for all concerned in handling the massive amounts of data threatens to swamp the entire system by turning litigation into nothing but an e-discovery donnybrook.” (For my younger readers “donnybrook” means a loud brawl or melee. To my really young readers, its a mosh pit.)

“E-Discovery is so expensive, it could ruin the system.”

“The biggest issue facing litigants today is how to handle e-discovery. It can be incredibly expensive, and costs are not routinely passed on to the requesting party. The rules are trying to address this, but there has to be a better solution with more certainty.”

“The rules on e-discovery are completely out of touch with the costs of such discovery.”

“E-discovery rules are a disaster.”

“E-discovery is crushing the system.”

Trial Lawyers Solution

So now you know what some of the country’s most distinguished trial lawyers really think about e-discovery. As far as I can see from my study of this report, it has not dawned on any of them that they may be part of the problem, or that they need to better inform themselves on the technological issues underlying e-discovery.

The Press Release announcing the interim report and survey explained what steps the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System now plan to take to address these problems:

Analysis of effective alternative civil procedure schemes in the United States and abroad; and

Development of a set of proposed principles that might govern any major revision of the discovery or other provisions of the Federal Rules of Civil Procedure. 

My Proposed Addendum to Their Plan

With all due respect to the distinguished Fellows, this plan will not work without including at least two more components.

First, we attorneys need to step out of our own long shadows and recognize that we are part of the problem. We need to admit that most of us are deficient in understanding the new technologies that drive today’s world. As a consequence, we no longer understand the technological media in which our clients operate. We do not understand the evidence crucial to the outcome of most cases. We do not know where to find it, nor how to gather it, nor how to look at it properly when we do. We have delegated too much to e-discovery vendors, some of whom are driven by immediate profit motives, not the best interests of justice and efficient dispute resolution. Simply put, many of us are not competent to practice law in the Twenty-First century where most evidence is digital, not paper. Until we recognize and acknowledge the competency problem, we will never be able to slog our way out of the morass with more committee meetings, rules, and principles.

Second and last, once we step out of our shadow, we need to address the problem with strong educational efforts in both the Bar and academic institutions. The work should begin in law schools. Most today do not even offer courses in discovery, much less electronic discovery. The professors do not find it theoretical or interesting enough to warrant their attention. That is irresponsible. The College of Trial Lawyers is correct to see e-discovery as a real problem, even if they do not yet understand the full dynamics of the problem. The academic colleges need to awaken too, and start to train law students for the advanced technologies that await them in the real world.

The admissions departments of law schools should also take this pressing societal problem into account and recruit technologically sophisticated students. Computer science majors should be given a preference. It is a mistake to fill our law schools with only Political Science, Philosophy, and English majors. Moreover, law schools should start to consider offering dual degrees and collaborate with the Computer Science Departments. At the very least, there should be e-discovery certificate programs for law students. The employability of such graduates would increase dramatically.

Technology is rapidly changing, and if the law is to remain relevant, it must change and adapt just as fast. A lifetime of continuing education and study is needed to maintain competence in today’s world. Lawyers must understand the world in which they live in order to serve their clients effectively. Lincoln learned the new, advanced technologies of his day: railroads. We must do the same to remain relevant.

Trial lawyers especially have to understand the digital information age in which we live. Their job is to investigate and prove the truth of what happened in the past in order to resolve the disputes of the present. The stories of what happened yesterday are all stored in computer networks around the world, waiting on clever lawyers to uncover and reveal the truth.

Conclusion

No one can operate effectively in the court rooms of tomorrow without a good understanding of where the digital evidence is stored, how to retrieve and review it in a forensically sound yet cost effective manner, and how to have it admitted into evidence at trial. These are tricky skills, even for those of us who do e-discovery, and only e-discovery, full time. Most of the Fellows who answered this survey are unlikely to have the time or inclination to study and master these new skills. A lot of the burden will necessarily fall on young lawyers and law students. They have the time, energy, and aptitude. They have grown up in a digital online world. They are the long term solution to this problem. The sooner law schools recognize this, the better.

In the meantime, trial lawyers should accept that specialists in the field of e-discovery are a necessary evil. If an e-discovery specialist knows the field, they can save you money and take you out of the e-discovery morass faster and more reliably than a dozen new rules. The world today is too complex for one man or woman to do it all. In today’s global, interdependent world we all need to work together in teams. If trial counsel does not love and understand technology, they should affiliate with someone who does. When law schools get the message, there will be plenty of new associates available who are ready and able to fill the bill. In the meantime, deal with the consultants and other specialists.

Electronic discovery can be done in a cost effective manner, if you know how. The way out of this morass is learning, and the knowledge and wisdom that eventually comes with it. Study is required by everyone: lawyers, judges, paralegals, technicians, professors, and law students alike. We all need to master technology, especially technologies related to electronic discovery. This, in turn, requires learning to work with Information Technology experts. The alternative is to turn back the clock to a paper world, turn off all of the damn computers and stop sending emails. I know many lawyers out there who might like that. But, since that is not likely to happen (your kids won’t allow it), we need to start understanding all of these high-tech toys, at least well enough to find the evidence they generate and hold, and not break the bank in the process. It can and will be done as soon as we accept responsibility for this problem ourselves, stop blaming it all on the rules and judges, roll up our sleeves, and start learning how it all works.

Are We the Barbarians at the Gate?

NOTE TO READERS: We have some proprietary ideas on how to protect your company from the kind of “Catch 22″ problems described here. Drop me an email if you want to talk about it.

The key issue in international e-discovery today is privacy and the conflict between the discovery laws of the United States, which give little or no regard to individual privacy, and that of the rest of the world, which do. In most of the civilized world today, privacy is a fundamental right. It is expressly stated in the government constitutions and other fundamental laws. The United States stands alone in considering privacy as a secondary, implied right, existing somewhere in the penumbra of other fundamental rights. Griswold v. Connecticut 381 U.S. 479 (1965).

Further, the few privacy rights we have are almost all lost when we go to work, especially when we use our employer’s computer systems. Even the privacy right which is arguably the strongest in our common law system, the right to secret attorney-client communications, is lost when you enter the workplace. See Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 60 Fla. L. Rev. (2008) (pending publication). (That’s written by my son, not me, and should be available soon.)

Since we have such weak privacy rights, especially for employees, our courts routinely order foreign parties sued here to produce information that is protected from disclosure in their own country. From the perspective of these foreign companies, and their employees, we are the barbarians at the gate bullying away their fundamental rights.

The “Catch-22″of Cross-Border Discovery

The way things stand now, if you want to do business in the U.S., you have to forsake your company’s and your employees’ rights to privacy. You have to allow anyone who sues you, to sift through all of your email and other confidential records. The private communications of your CEO and blue collar workers alike are fair game for any plaintiff to pry into. About the only protection U.S. rules provide are found in our incredibly broad and vague relevancy standard. Here, the information sought only has to be “reasonably calculated to lead to admissible evidence.” The rest of the world finds it incredible (and so too do many in the U.S.) that a plaintiff can read their email, even if it is not relevant, if they can simply argue it might lead to relevant information. Most of the time courts will allow them to do so even before the court has determined that their complaint states a cause of action.

If you, as a foreign litigant, refuse to turn over the information, and instead honor the fundamental rights of your employees and follow the laws of your home country, then U.S. courts are going to punish you with an assortment of sanctions, including adverse inference instructions, fee awards, or even the ultimate sanction of entering a judgment against you. The choice between compliance with the U.S. forum court law, or the law of the country in which the ESI or employees are located, has been called a Hobson’s Choice or Catch 22 situation by the Sedona Conference. They have just completed an excellent publication on international e-discovery entitled: “The Sedona Conference® Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy and e-Discovery” (August 2008 Public Comment Version). This publication can be downloaded for free at the Sedona Conference website.

Electronic discovery has become the front line of the conflict between the U.S. legal system and the rest of the world. Whenever a foreign company is sued in the U.S., it becomes subject to discovery requests, which today means primarily discovery of the information they keep in their computers (ESI). When the information is kept in computers located in their home country, or involves non-U.S. employees who enjoy fundamental privacy rights that we do not, a conflict of law issue arises. See Cate and Eisenhauer, “Between a Rock and Hard Place: The Conflict Between European Data Protection Laws and U.S. Civil Litigation Document Production Requirements,” Privacy & Security Law Report, Vol. 6, No. 6, 02/25/2007; Leeuw and Wellner, European Data Privacy Laws Pose E-Discovery Problems; New York Law Journal (May 21, 2008). 

Litigants, typically plaintiffs, want information that they are entitled to under U.S. law to try to prove their allegations of wrongdoing. But oftentimes the ESI they want and have a right to under U.S. law is located in jurisdictions where they have no right to that information. In fact, in many countries, including all of Europe, it would be a crime for the holders of that information to disclose it without the express permission of the individuals involved. 

The rest of the world is getting tired of the U.S. allowing any plaintiff to put their companies into this kind of untenable situation. The U.S., especially certain state courts located in the U.S., is the forum of choice for most class action lawsuits. Often the threat of invasive discovery allows a kind of legal extortion of inflated settlements. The world outside of the U.S. sees our enforcement of no-privacy discovery rules as a kind of legal bullying on our part, and as will be explained here, they are starting to fight back.

U.S. Privacy Laws

There is no express constitutional right to privacy in our legal system. Lee Goldman, “The Constitutional Right of Privacy” 84 Denv. U. L. Rev. 601 (2006). Instead, our unenumerated  privacy rights exist as mere shadows of more basic rights that are enumerated in our constitution, such as the right not to have soldiers stationed in your home. I kid you not. Here are the words of Justice Douglas in Griswold where the Supreme Court first articulated this right: 

Previous cases suggest that the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them substance. Various guarantees create zones of privacy, such as the First Amendment right of association, the Third Amendment prohibition against quartering soldiers in a home, the Fourth Amendment right to be secure in one’s person, house, papers, and effects, the Fifth Amendment right to not surrender anything to one’s detriment, and the Ninth Amendment right to not deny or disparage any right retained by the people. These cases press for recognition of the penumbral rights of privacy and repose.

Note how even this landmark Supreme Court case, by renowned legal scholar Justice Douglas, mixes the right of privacy with the right of repose, whatever that is - the right to be left alone and go back to sleep I suppose. (This is just what every ruler wants the populace to do!)

There was an active dissent in Griswold that should not be forgotten. Dissenting Justices Hugo L. Black and Potter Stewart argued that a general right to privacy could not be inferred from any part of the Constitution. Further, they criticized the majority for deciding this case according to personal opinion instead of following the text of the Constitution. Justice Black wrote, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” In Griswold, Black found no “specific constitutional provision” that prohibited the state government’s regulation of the private behavior at issue in this case.

You may think things have come a long way since Griswold asserted these penumbral privacy rights in 1965. Indeed, there have been advances, but most of the world remains unimpressed. Our zones of privacy are, in my view, quite sketchy, especially in this new century with the widespread collection of personal information databases, online intrusions, the growing problem of identity theft, and the many compromises made since 9/11/01 in the name of the “War on Terror.” See eg. USA PATRIOT Act, 18 USC §2712, 31 USC §5318A (2004).

Politics aside, the power of technology to invisibly encroach upon our privacy is perhaps the most troubling new development. Many people think that the incredible ability of new technologies to intrude upon privacy demonstrates the need to rethink and elevate its legal status. See Susan E. Gindin, “Lost and Found in Cyberspace: Informational Privacy in the Age of the Internet,” 34 San Diego Law Review 1153 (1997); Electronic Privacy Information Center; Open Security Foundation’s Dataloss Report; Electronic Frontier Foundation; U.S. DOJ on Privacy Issues in the High-Tech Context.

The most significant privacy opinion after Griswold by the Supreme Court came just two years later in Katz v. U.S., 389 U.S. 347 (1967). Katz created a two prong “reasonable expectation” of privacy test that has often been criticized as circular and vague. Posner, “The Uncertain Protection of Privacy by the Supreme Court,” 1979 S. Ct. Rev. 173, 188. 

The first prong — subjective privacy — is whether the person exhibited a personal expectation to be left alone from government intrusion. Our expectations, in the eyes of the rest of the world, are incredibly low. We appear to be a nation of Gladys Kravitz busy-bodies. We do not seem concerned that a big brother government, especially the judicial branch, can peer into everything you do. In fact, one of the most popular television shows in America is called Big Brother and celebrates that total lack of privacy. We seem to have forgotten the evil Big Brother in George Orwell’s 1984. 

The second prong of the legal test — objective privacy — is whether the personal expectation is one that society is prepared to recognize as reasonable. Again, our personal expectations of privacy are low, especially in the workplace. It is as if we take for granted that every thing we say at work, every email we write, may someday be seized and read to a jury, and thus the newspaper, since trials in the U.S. must be public.

The media and some high tech companies would have us all embrace a paparazzi life style, where we all fancy ourselves a celebrity, at least for fifteen minutes, and gaze trustfully at the ever-more-prevalent Google cameras. A recent Wall Street Journal article “Privacy? We Got Over It” promotes this view. It suggests that Americans and Brits do not really care about privacy anymore. It quotes the advice of Scott McNealy, chairman of Sun Microsystems, who in 1999 said, “You have zero privacy anyway. Get over it.” And the observation by Oracle CEO Larry Ellison: “The privacy you’re concerned about is largely an illusion. All you have to give up is your illusions, not any of your privacy.” But see The Privacy Journal by Robert Ellis Smith, an attorney, journalist, and author of several books on privacy; Scientific American editorial, Seven Paths to Regulating Privacy making specific suggestions to improve privacy in the U.S. lost by technological advances.

Robert Ellis Smith, who is cited by the Scientific American editors, traces the roots of America’s privacy deficiency to our Puritan roots. Scientific American quotes Rev. Robert Browne, an influential Anglican minister who said in 1582 “We must all watch one another.” According to Robert Ellis Smith, this quote, and the attitude behind it, originate in a dark puritanical view of the human spirit as weak and prone to wickedness without the constant “support” of a community of spies and informers. Smith contends that this view had enormous influence on the New England Puritans and still lingers with us in today’s voyeuristic society. R.E. Smith, “Ben Franklin’s Web Site: Privacy and Curiosity From Plymouth Rock to the Internet” Privacy Journal (2004). (Think this is ancient history? Think again! City councils in Great Britain have recently begun recruiting unpaid volunteers to spy on their neighbors and report such things as garbage recycling and dog poop violations. According to this London news report: “The ‘environment volunteers’ will also be responsible for encouraging neighbours to cut down on waste.”)

In the U.S. we only seem to think that certain limited types of information about ourselves are entitled to privacy protection, such as our medical records, financial records, and social security numbers. It does not even occur to us, like it does to the average European (excluding the U.K.), that all of our personal information is inherently private, even information in an email identifying whether a particular employee was an author or recipient. Sedona Framework at pg. 9, Fn. 34.

Most employers in the U.S. today make it clear to their employees that they have no right to privacy in anything they do on a computer at work. They monitor their employees’ email and Internet use, and some even go so far as to record every key-stroke they make. The basic rationale is that the computers they use at work belong to the company, so anything an employee writes or does using these computers belongs to the company, regardless of whether they are on a break or after hours. Some courts will also view it as a matter of contract law. The employees “contracted away” any rights they may have had to privacy. Karen Eltis, “The Emerging American Approach to E-Mail Privacy in the Workplace,” 24 Comp. Labor Law & Pol’y Journal 487, 489 (2005) (”employer exercises quasi-absolute sovereignty over employees, having availed himself or herself of their services by virtue of the employment contract”).

American workers seem to accept and submit to this master-servant type of relationship, but in Europe and other countries, it is considered an oppressive violation of basic human dignity. The workers in these countries do not contract away their fundamental human rights, which for them includes a right to privacy. Instead, these rights automatically carry over into the workplace. For instance, in France, it is not legal to inspect an employee’s computer at work, even when the employer has reason to suspect wrongdoing.  Philippe K. v. Cathnet-Science, Cour de Cassation, Chambre Sociale, Arret No. 1089 FS-P+B+R+1, Pourvoi No. J-03-40.017, 5/17/05 (holding that presence of erotic photos on employees desk was not grounds for searching his computer); Societe Nikon France v. M. Onof, Cass. soc., Oct. 2, 2001, Bull Civ. V, No. 291 (finding an employee’s rights violated when the employer searched his computer upon suspicion employee was conducting a side business); Davila, Erica; International E-Discovery: Navigating The Maze, 8 U. Pitt. J. Tech. L. Pol’y 5 at pgs. 4-5 and Fn 35 (Spring, 2008). As Davila observed at page 5 of her excellent article:

[M]any countries view privacy in the workplace differently than the United States does. There is generally no expectation of privacy in workplaces in the United States, and so requesting and receiving e-mail in discovery is commonplace. In the EU, however, there is an expectation of privacy in the workplace, and so e-mail sent and received via work accounts may not be discoverable.

Privacy Laws Outside of the U.S.

Most modern democratic countries today have strong individual privacy rights, including all of the countries of Europe. They consider personal privacy to be an inalienable human right, on the same stature as the right to free speech and assembly. The treaties and law that underlie the European Union embody these privacy principles. The fundamental law in this area is the European Convention on Human Rights of 1950:

Article 8 - Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The European Union clarified that these privacy rights apply to computer data back in 1995 by adoption of the European Union’s Data Protection Directive:

Article 1 - Object of the Directive

1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.

Some American apologists have tried to explain the European privacy laws as a kind of over-sensitivity on their part arising out of their WWII experience with Nazi Germany. So what is wrong with learning the lessons of history? Many countries outside of Europe have strong privacy laws, having learned the same lessons from other totalitarian regimes, including communist. See eg. Article 17 of the Korean Constitution which states that all citizens shall enjoy the inviolable right to privacy, and Article 18 which provides that the secrets of all citizens shall be protected.

Do we have to have a federal gestapo reading all of our email before we react? Let us never forget why our own Bill of Rights was formed. It was a lesson our Founding Fathers learned in 1776 from the oppressive rule of the first King George. If our Founding Fathers were alive today, I have no doubt they would access the situation with dismay, and rush to add a new privacy right amendment that at least equaled the laws of France.

The World is Fighting Back

Most of the world has reacted to what they perceive as overly-intrusive American discovery laws by enacting what are called blocking laws. These are laws designed to try to protect their citizens and businesses from our no-privacy legal system; some expressly, and some by implication, such as Swiss banking privacy laws. The Sedona Framework cites to a number of these laws, but let’s focus on what France has done. 

In 1980, France enacted a criminal law that outlawed discovery within France by private parties for litigation abroad. French Penal Law No. 80-538 provides:

Subject to international treaties or agreements and laws and regulations in force, it is forbidden for any person to request, seek or communicate, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature leading to the constitution of evidence with a view to foreign judicial or administrative procedures or in the context of such procedures.

Sedona Cross-Border Framework at pg. 18, Fn. 74.

These blocking statutes, including the French one, have not been enforced. For this and other reasons, when a French company is sued in the U.S., and they oppose discovery on the grounds it would violate French law, the typical reaction of the U.S. Court has been “too bad.” You did business in the U.S., you got sued here, so now you have to follow our discovery rules. Enron v. J.P. Morgan Securities Inc., No. 01-16034 (Bankr. S.D.N.Y. July 18, 2007) (involved a French bank); United States v. Vetco, 691 F.2d 1281 (9th Cir. 1981) (involved a Swiss bank); Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2005 U.S. Dist. LEXIS 20049, at *14 (N.D. Ill. Sept. 12, 2005) (involved an Italian company);  Columbia Pictures Industries v. Bunnell, at pgs. 28-30; affirmed at 245 F.R.D. 443 (C.D. Cal. 2007) (involved discovery of RAM memory and a website located in the Netherlands).  

As a general rule, U.S. courts do not give much weight to foreign blocking laws because they consider them mere Paper Tigers, and besides, they do not much like the idea of foreign countries trying to interfere with our rules of discovery. Although this reasoning may be morally suspect if you value the right to privacy and comity, it was based in fact.  Until recently, the blocking laws were never enforced, even in France.

The foreign prosecutors would recognize that their citizens and businesses were in a Catch 22 situation, and back-down to the U.S. courts. It was like two countries playing a game of legal-chicken. Quite naturally, the U.S. courts would always win that game. The foreign prosecutors and judges would have to back down, because otherwise they would have to punish one of their own. But, as will be explained below, the French appear to have grown weary of losing this game. They tire at watching U.S. courts bully their corporations into disclosing private information to U.S. plaintiffs, even though that directly violates French law. They now appear more than willing to sacrifice one of their own to show that they mean business.

The French Bite the Bullet

After over twenty years of not enforcing their blocking statutes, and observing the near uniform reaction of American courts, it has become obvious to foreign jurisdictions that if they do not start enforcing these laws, they might as well repeal them. For otherwise, the U.S. courts will never take them seriously. If that means a few sacrificial lambs, then so be it.

France has become the first country to so bite the bullet and publicly enforce its blocking laws. It arrested and criminally prosecuted one of its own, a French lawyer no less. In re Advocat “Christopher X”, Cour de Cassation, French Supreme Court, December 12, 2007, Appeal n 07-83228. This is the first such prosecution on record, which was started by a French judge in secret two years ago, and has just recently come to light in this opinion of the Supreme Court of France. Thanks to the Sedona Cross-Border Framework group for discovering this opinion and bringing it to our attention. Sedona touts this decision as ground-breaking and I agree.

The french lawyer, Christopher X, was representing his French corporate client, and complying with an order of a federal court in New York. Strauss v. Credit Lyonnais, 242 F.R.D. 199 (E.D.N.Y. May 25, 2007). The U.S. District court had rejected Credit Lyonnais’ argument that it would face possible criminal prosecution by French banking authorities if it complied with the requested discovery order. The U.S. court held that there was a low likelihood of actual prosecution, and so did not give this factor any weight. The court ordered the defendants to disclose records relating to the case within 30 days.  When the French advocate started to do that by interviewing a witness in France, he was arrested and prosecuted.

The French in effect finally did not blink; they carried out their law. Would we have done any less if the shoe was on the other foot? If, for instance, a foreign court (think China) had tried to interfere with a right which we consider important, such as freedom of speech or religion? The foreign court might not consider these rights to be that important, just like we do not consider an employee’s right to privacy to be that important.

Mr. Christopher “X” was convicted and fined €10,000 (about $15,000), and could have been sentenced to six months in jail. I cannot help but suspect that if an American lawyer had gone to France for the information, he would have gone to jail (and we would probably know his last name). In fact, I have heard many stories from e-discovery vendors of being threatened with arrest or having their hard drives confiscated at the border by customs. The e-discovery vendors are easy targets and they are very paranoid about it, and always use local people as far as possible. It would not surprise me to see the next criminal prosecution against one of the major e-discovery vendors and a few of their “just following orders” employees.

The Sedona Cross-Border Framework has a good discussion of the significance of In re Advocat “Christopher X”:

The recently published decision of the French Supreme Court affirming the criminal conviction of a French attorney for violating the French Blocking Statute casts in doubt a great deal of U.S. case law precedent on the issue of cross-border discovery. Prior U.S. court decisions ordering cross-border discovery over the objections such discovery violates foreign blocking statutes is expressly premised on the heretofore absence of any public enforcement of such statutes.

Historically, the attitude of the U.S. Supreme Court and U.S. federal and state courts at all levels has been that the threat of such prosecution is, in reality, just a minor factor in the type of proportionality analysis called for by the Restatements of Law. The U.S. courts in these cases almost uniformly reason that in the absence of enforcement of foreign blocking statutes, the Hague Convention cannot be considered the exclusive means of cross-border discovery. This is, if blocking statutes have teeth but no bite, then cross-border discovery should be ordered, albeit with some restrictions based upon the type of case, and uniqueness and relevance of the information sought. . . . 

The circumstances of publication of the French decision almost one year later, and its grand jury-like proceedings begs the question whether there have been prior such unpublished decisions. . . .

Now that the logical syllogism upon which prior U.S. case law is based is broken, the stage is set for U.S. Courts to reconsider . . [and] more thoughtfully than ever weigh the civil and criminal consequences in their jurisdictions . . . The stakes of this “Catch-22” are higher than ever before. And the situation cries out for a collaborative framework in which cross-border legal disputes can effectively be resolved.

Sedona Proposes a Solution to the Catch 22 Conundrum

True to the standard setting traditions of the Sedona Conference, the working group behind the Framework for Analysis of Cross-Border Discovery Conflicts not only identifies the problem, but proposes a solution, namely a framework for analysis. The leaders of this Sedona group are M. James Daley and Kenneth N. Rashbaum. They have been helped by Kenneth J. Withers, Quentin Archer, Moze Cowper, Paul Robertson, Amy H. Chung, and Conor R. Crowley. Here is their proposed seven-fold framework:

Ideally, determining the scope of cross-border discovery obligations should be based on a balancing of the needs, costs and burdens of the discovery with the interests of each jurisdiction in protecting the privacy rights and welfare of its citizens. The following factors should be considered in this balancing:
1. The nature of the data privacy obligations in the jurisdiction where the information is located;
2. The obligations of the responding party to preserve and produce relevant information in the jurisdiction where the dispute is filed and the jurisdiction where the data is located;
3. The purpose and degree of custody and control of the responding party over maintaining the
requested information;
4. The nature and complexity of the proceedings;
5. The amount in controversy;
6. The importance of the discovery to resolving critical issues; and
7. The ease and expense of collecting, processing, reviewing and producing relevant information, taking into account:

a. the accessibility of the relevant information;
b. the volume of the relevant information;
c. the location of the relevant information;
d. the likelihood that the integrity and authenticity of the information will be impaired by the discovery process; and
e. the ability to identify information that is subject to foreign privilege and work product protection from disclosure.

If you do any work with international e-discovery, you should study this Sedona publication and look for ways to apply this framework to address the serious issues you face. These issues now include a very real threat of arrest and criminal prosecution in a foreign land.

I like this framework and think it will help. I would, however, like to see the cost factor emphasized more and add “specificity of the request” as a consideration. This is just the first public comment draft of the publication and if you have input, including criticisms, they would like to hear them.

Conclusion

Sedona has provided a good conceptual framework for courts and lawyers to use to analyze the international e-discovery issues. This is a good tool to try to fairly address the “Catch-22″ conundrum created by the conflict of laws. But it does not address the source of the problem, the imbalance between the U.S. legal system and the rest of the free-world.

Our laws provide relatively weak privacy protection, and this problem is compounded ten-fold by our “let-it-all-hang-out” discovery system. There are virtually no privacy rights granted to employees of companies, domestic or foreign, whose employers are sued in a U.S. court. Their email and private documents will be seized and read, even email kept on their home computers or personal email accounts. The so called limit of “reasonably calculated to lead to the discovery of admissible evidence” is bogus and subjective.

If we are to stop being seen as “Privacy Barbarians” by the rest of the world, we need to address these fundamental concerns. Privacy rights should not be limited to the home and a few zones of interest. We must learn the harsh lessons of history, of Hitler, Stalin, and Mao, in order to avoid their repetition in a high-tech world of constant surveillance. The time has come for us to realize that privacy is an inalienable human right, not a shadowy extension of other rights. Just like the freedom of religion or free speech, we should not allow it to be contracted away as a condition of employment. When we finally elevate privacy to a core right, we will join the ranks of other civilized countries and this conflict of laws will disappear.

The only way out of the current Catch 22 conundrum is for the U.S. to lift its standards up to that of the rest of the free world. We need to greatly strengthen our own privacy laws, especially those pertaining to employees, so that they are roughly equal to that of other democratic countries. Why should the people of France enjoy greater rights and freedoms than Americans?

Since most of the free world has clear privacy rights built into their constitution, in my opinion we must do the same to attain real parity. A new Privacy Amendment to the Constitution should be passed. I know that a Twenty-Eighth Amendment to the United States Constitution would have huge political implications beyond e-discovery, international comity, and employee rights. Privacy rights underlie some of the most controversial issues of our day, including abortion, gay marriage, pornography, assisted suicide, and the de-criminalization of drug use. Still, I think we as a society should at least start talking about it, rather than continue to muddle through with vague laws subject to so much political manipulation and court stacking. 

The other Losey who is writing on this general subject takes a different, more conservative view. “Clicking Away Confidentiality,” supra. Adam in his conclusion suggests that a more gradual approach may ultimately rectify the imbalance in employee privacy rights between the U.S. and the rest of the world:

[I]t is possible that employee privacy rights in the United States will broaden over time to the point that workplace waiver is no longer an issue. Most countries outside the United States offer significantly more privacy rights for employees, and the United States may eventually fall into line with the rest of the world and legislatively establish broader privacy rights for employees in the workplace.

The impetus behind this broadening of employee privacy rights may come from upper level management, and other control group employees. Control group employees are often responsible for making decisions regarding employee privacy and employee surveillence, and yet they themselves are employees. Thus, there is a strong incentive for the employee-authors of employee policy manuals to broaden employee privacy rights per the employer’s policies.

These are good insights into corporate culture. I admit that greater privacy rights for employees are probably more likely to come to pass in this manner, than by my fantasy of a new constitutional amendment. After all, the email of senior management is the number one target of every plaintiff’s fishing expedition.

In addition to strengthening privacy rights, a solution to the international e-discovery conundrum requires a significant tightening of our relevancy standards. We need to move away from our current vague standard. It is ideally calculated for intrusive, over-broad document requests and often results in wildly inconsistent interpretations on permissible discovery. We should, instead, only allow discovery of directly relevant information. Moreover, before we start reading emails and other private communications, there should be some kind of good cause showing.

Finally, I think we should start to move slightly towards the European, Civil Code system of discovery, where the judges are far more active and tightly control discovery. I am not suggesting we abandon discovery all-together and adopt the Civil Code system, but I am suggesting a more active bench and better policing of over-reaching discovery abuses. Simply asking counsel to act like professionals and work things out, which is the typical reaction of most judges today on discovery issues, is a non-solution that has been failing for years.

I recognize that our judiciary is now over-worked and under-staffed and is thus unable to take on the kind of active role needed to curb these abuses. So I couple this suggestion with a plea for more judges and much higher pay. Also, I would suggest a move away from elected judges in our state systems. We should instead follow the German system where the best and the brightest are routinely recruited right out of law school into a judicial track.

Ken Withers, Director of Judicial Education and Content of The Sedona Conference, recently discussed some of these issues with me via email, which he has graciously allowed me to quote:

As we said in the Webinar, recent events in the US may move us towards a more European view of privacy that might result in restrictions on the scope of some discovery or lead to greater involvement of the judge in controlling discovery. At the same time, at least in the UK, the strict and overbroad definitions of “personal data” and “processing” may be giving way to a more practical approach that recognizes the need to have some reasonable methods for moving data, while protecting core privacy interests.

The problem in the US is the solution. A much greater role for the managerial judge in narrowing the scope of discovery, as proposed in the Economist a