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There can be no real justice without truth, and in today’s world of civil litigation, no real truth without e-discovery. That is because writings are the key evidence in most cases and almost all writings today are electronic. The paper documents we see are mere shadows of the original ESI; small tips of vast icebergs of electronic truth. Yet lawyers continue to settle for the few paper remnants scattered about a controversy and avoid search of these depths. This realm is beyond their training, beyond their competence. So they agree between themselves not to go there, or if forced, they delegate the task to vendors. They abdicate the traditional role of lawyer as master of discovery. This is a disservice to the profession and the clients we serve.
This situation is getting worse each day, not better, as ESI grows exponentially in volume and complexity. It has created a crisis for the legal profession. It is not a crisis of poor rules as some contend, and thus revising the rules again is no solution. It is a crisis of competence, and as such it is an ethical crisis. It is time we owned up to the problem and did something about it. We have an ethical duty to act. The solution is clear: Education and training, combined with recognition and affiliation of experts where competence has not been attained.
Fundamental to professional ethics is the duty to keep the dispute resolution process fair and honest. Controversies must be settled on their merits based on the facts and the law. Moreover, lawyers must put the interest of their clients ahead of their own personal interests. These are the two core truths of attorney ethics. In electronic discovery, we are failing on both fronts.
Can a lawsuit be fair if only one side has an attorney competent to explore the electronic depths, to uncover the truth of what happened? Is the process fair if the attorneys on both sides lack the competence to find the facts hidden in the electronic writings? If the attorneys agree not to look behind the paper curtain and try a case without knowing the electronic truths, is that a fair trial for anyone? If e-discovery in a case is too arcane and complex for an attorney to handle, do they have a duty to share the burden of representation with another attorney who is competent in this field?
Attorneys must put aside their personal pecuniary interest and act in the best interests of the client. If they are not yet competent in e-discovery, or if they have limited competence and face a problem beyond their means, they must retain co-counsel who is able, rather than avoid it or do it negligently. They have an ethical duty to do so, even though this will lower their fees or prove embarrassing to their false pride. The interests of the client must always come first.
In the medical profession, no physician, barring an extreme emergency, would dream of attempting a procedure for which they were not trained and not competent. They would, of course, affiliate another physician in their patient’s care who had the expertise needed. They would not just retain a vendor, say a drug company, to tell them what to do. They would enlist the assistance of a peer, of another professional subject to the same duties of ethics and professionalism, not to mention malpractice insurance. Is the legal profession subject to a lower standard? I think not. It is time we started living up to it.
Society is complicated. Law and dispute resolution are in many cases today, if not most cases, nearly as complex as the problems faced by medicine. Specialists are needed in substantive areas of law and in procedural areas. The day has come for e-discovery to be recognized as its own speciality. This does not mean that all e-discovery tasks are beyond the pale of trial attorneys. The modern litigation generalist can, with sufficient time and attention, learn the fundamentals of e-discovery and handle many of the basic tasks on their own, including management of vendors.
Still, most have not yet done so. It takes more than a couple of CLEs and books. Until litigators get there, they have an ethical duty to enlist the assistance of other attorneys who have. Moreover, in large more complex cases, an e-discovery specialist attorney will always be needed to manage and supervise the process and personally handle the most difficult tasks. The facts and issues can be too complex and time consuming to be performed competently by part-time e-discovery practitioners.
ESI Bytes Interview
Since ethics and e-discovery are, in my view, critical topics for all litigators today, when I was contacted by Karl Schieneman (shown left) for another interview, I agreed, but only if we would limit the discussion to ethics. (I have previously done an interview by Karl with Judge Scheindlin focused on education.) Karl, whose day job is the Director of Legal Analytics and Review at Jurinnov, readily agreed.
KARL: … Ralph, great to have you back on a second show with us.
RALPH: Great to be here, Karl. <You’ve gotta be easier on me than Mary Mack.> I like speaking with you and appreciate the opportunity to get the message out there to as many people as possible about the importance of ethics in e-discovery.
KARL: This is a topic that really, the more you get into e-discovery, it becomes apparent is just crying out for attention, and you’ve blogged about this topic before. You recently gave a presentation at Mercer University with Judge Facciola, Jason Baron, Professor Monroe Freedman and others on ethics of electronic discovery. Tell me a little bit about that conference, which just focused on the ethics.
RALPH: I’d be happy to. It was really quite an incredible, very well run, good conference at Mercer, which is located just south of Atlanta in Macon, Georgia. Beautiful campus, and we had two full days for a seminar put on by the Law Review there. <Boy, do I sound like a flatterer; better shut up.> I believe it was the first academic seminar to address the issues of ethics in e-discovery and also in – there were some other presentations on ethics involving the on‑line provision of legal services and advertising, that sort of thing. <All I can remember of the non-e-discovery stuff was their talk about a former Playboy playmate turned lawyer in Illinois who includes “special photos” in her law web, and I am not going to start talking about that!> But the focus was on e-discovery. <Must stop thinking about that Illinois lawyer.>
In fact, this first came up about a year ago, Karl – it’s been that long in gestation. <I am talking about the e-discovery ethics seminar, of course.> In reading all of the cases in e‑discovery, where there’s just case after case of lawyers being sanctioned … the latest one is, you know, a law firm alone being sanctioned (Bray & Gillespie v. Lexington Ins.), not the client, for misconduct in e‑discovery. This seemed quite puzzling to me in that, you know, I’ve been a lawyer a long time – since 1980 – and you didn’t see many sanction cases in the ’80s and ’90s against lawyers. I mean, they would come up, but spoliation was a pretty rare thing. So, I got to wondering, you know, what is going on? Has the legal profession suddenly become less ethical? Nowadays in the 2000s, are we behaving with lower moral standards than we did in the ’80s and the ’90s? <I was there and learned from many older attorneys, and so I know that’s not true.>
I was really trying to figure out why is it that there’s so many sanction cases and that lawyers are being reprimanded so often now, and particularly in the field of e‑discovery. I mean, I think this is the field, and nobody’s ever challenged me on it, where you’ve got more sanction cases involving lawyers than any other field of law. I found it quite puzzling.
KARL: You know, I’ve found if you say something like that enough times, it becomes true. People believe it.
RALPH: Well, yeah – no, I would love to see another area of law that has more problems than we do in e‑discovery, but I haven’t seen it.
KARL: I won’t challenge you on it, but why do you think this is growing? Because I don’t disagree, honestly, but why do you think this area is growing with ethical issues?
RALPH: Well, this was the puzzler. <Hope he gives me time because this is going to take a while to answer properly.> And so I started thinking about it, you know, and this is a big problem and it’s not something that just happens overnight. And then I got an invitation from the Dean at Mercer Law School, who said they were organizing this event and … we came up with a dream team, several of them were available, including Judge Facciola, Jason R. Baron, and the person that I now co‑teach e‑discovery with at the University of Florida Law School, and that is Bill Hamilton. He came up there. And then we got Judge David Baker, who’s a Magistrate Judge in Orlando, well known and rightfully so for his writing of the e‑discovery opinion, In Re Seroquel. Judge Baker is the only person I know who’s been messing with computers longer than I have. He goes back to the early and mid ’70s, so he’s very much of a technophile.
We had this kind of dream team of people that were all – you know, we had months to prepare for this event and trying to think out the whole question of ethics. Jason gave a presentation – the way it works is in an academic setting, you make a presentation and then the panel members sort of comment on it. Jason made a very interesting presentation concerning ethics related to search, as you might expect, and it had to do with asymmetric knowledge is the way he called it. In other words, when you represent a client as a lawyer over and over again or if you’re in‑house counsel, you become very familiar with their information and you know basically – you have a much better idea of what’s in their information, certainly far better than opposing counsel does. What kind of ethical duties does that create to assist opposing counsel in their search for relevant information? This was the thesis that Jason explored and that was followed up upon by Judge Facciola in a whole area of discussion.
My area of discussion, though, got back to this puzzling question: why are lawyers behaving badly? <That is supposed to be funny, Karl. How about at least a chuckle? Maybe he’s never heard of the show?> Kind of a take-off on the popular television show. <Still no laughs. Oh, well. Maybe he’s texting or something?> I came up with this thing that I called the wicked quadrant, which is four different factors that I believe explain why it is that all of a sudden there’s so many lawyers being sanctioned in the field of e‑discovery. So I gave a presentation on that.
In the meantime, I also wrote a law review article further elaborating on my thoughts, and that’s going to be published by the Mercer Law Review, coming out soon in their next 2009 edition. The other thing Mercer did, which is fascinating and I suggest you try and get a hold of this, they made a transcript of the entire proceeding. So you can read Judge Facciola’s speech on this. You can read what Jason had to say about the duty to assist opposing counsel. You can read what I had to say and everybody, including, by the way, the keynote speaker, who was none of us.
Professor Freedman and Metadata
The keynote speech was given by a legend in academic circles called Professor Monroe Freedman, and he is about – I don’t know – late 70s. Very vigorous <Tried to break my hand when he shook it.> and known for his controversiality. He spoke about the ethics of metadata. He thinks that you have a duty to try and find out what your opposing counsel’s metadata is in emails and correspondence they send you. In spite of the fact that many state bar associations say it’s unethical, Professor Freedman takes the controversial view that you have a duty to mine metadata. And so that’s also in the transcript. A very fascinating discussion about that. In fact, I got into a big argument with Professor Freedman about that, as I don’t think that’s proper to do when you’re talking about correspondence between lawyers. But he has a strong position, saying that it is in fact a duty to your client to try and do that.
KARL: Is Professor Freedman an attorney, as well, or just an academic?
RALPH: Oh, boy, they hate it when you say just an academic. <Karl, you can now kiss any possible academic career goodbye!> Yeah, he is an attorney – as a matter of fact, he represents lawyers that get in trouble with bar associations. And he’s written several textbooks on the ethics of law and is a guy that you might retain if you had a problem ethically in front of a state board. So, yeah, he does practice law, but very controversial. One appeals court judge … who later became a supreme court justice … was on a campaign to have Professor Monroe Freedman disbarred because he was controversial back in the ’60s and ’70s. He survived. It’s quite entertaining to read what he had to say. So look out for that, the Mercer Law Review with the full transcript.
RALPH: I’ll probably blog about that or Twitter about it or something to let people know because I think it’s interesting to hear this kind of discussion. Believe me, no punches were pulled.
The Wicked Quadrant
So anyway, I wrote this law review article called The Wicked Quadrant that will also be included in the publication, and, you know, I’m honored to be in there with Judge Facciola and Professor Freedman and Jason and all of them. I won’t go into the details, but I will just tell you what the four elements of the quadrant are. I find there’s a lot of resonance and understanding among the general bar, nonspecialists in e-discovery, concerning ethics. They get ethics and understand the duty of legal competence. They know that’s the fundamental challenge that we’re facing here.
One of the four sections of the quadrant is that we all have a duty to keep up. We have a duty to learn the new law and, like it or not, part of that is – in litigation – e-discovery. So we’ve got to take the time to train ourselves to be competent in this field. The fact that the bar as a whole is not really doing that is one of the problems and leads to this appearance of impropriety. A lot of the impropriety is from not knowing what they were doing, and they were making mistakes. It may look like intentional bad faith, but actually they’re just screwing up because they didn’t know any better.
KARL: Yeah, you know, I’ve found that in law. I mean, if you think back to when you started as a lawyer, this is where — when I was reading this was my – what I first thought about. I remember that first year summer associate at a downtown law firm being asked to research something. And it was almost as if everything I learned in legal writing disappeared from my mind. I walked into the library and I thought, what do I do? And I must have killed a lot of time. I didn’t want to tell anyone I didn’t know how to start it. And, you know, I got – got through the project but – but it was – it’s almost like you’re not rewarded or there’s this fear of saying I don’t understand this, you know, when it’s the first time you try something. And that – you know, I don’t know if it’s the way lawyers are rewarded. You know, I’ve often heard partner, making partner, is a lot about never screwing up. Anyway, I’m sorry to interrupt you.
RALPH: <Huh? What was that all about.> No, it’s – you know, when I got out of law school, the UCC had just been enacted a couple years before. None of the older lawyers knew the UCC and it was a tremendous opportunity for young lawyers to make a contribution immediately. That’s the same situation we’re in now. When you and I did the show before it was on education, so you’ve heard me talk about this before. Young lawyers just getting out of law school now or just starting practice, there’s a tremendous opportunity for you if you can get the competence necessary because a lot of the older attorneys – the ones that are my age – they’re just not going to take the time and it’s just inherently difficult for them.
I started thinking about it and it is more than just a question of legal competence; it’s also a question of technology competence. That is a key part of the quadrant, the four factors to understand why lawyers are screwing up and behaving badly, is because they’re just overwhelmed by the technology. Most lawyers don’t get it, they don’t understand Facebook, they don’t really understand how email works, how deletion works, they don’t know what double-deletion means. There’s just a lot of things that are confusing to them. This technology incompetence leads them to do dumb things in cases like say, “Oh yeah, we’ll review that back-up tape and produce the relevant emails to you next week, Your Honor” when, of course, they have no clue that there’s 10 million emails on that back-up tape. They just – they don’t know really what they’re talking about. So that’s a big part of the explanation is that we’re in an unprecedented explosion in technological advances. A lot of us lawyers are having trouble keeping up with the ever-changing information revolution. <Well, to be honest, for me it still feels like slow motion, especially when using a PC.> So that’s another part of the quadrant.
And then just real quickly, the other two quadrant sectors are the ethics rules – and we’ll get into this in a minute – where you have the client advocacy duties balanced by the professional duties to tell the truth to the court and the duty to opposing counsel to cooperate. That hasn’t been getting enough attention among lawyers until very recently with Judge Grimm and the Sedona Cooperation Proclamation. The professional duties have been over-shadowed by that other very popular duty to vigorously advocate on your client’s behalf. That has gotten out of hand on occasion and that’s the other part of the explanation. Because this is the kind of thing clients understand; they see when you are shouting on their behalf and they may reward that financially. But they don’t understand why it is that you may have a duty to disclose email that’s going to hurt their case and you have a duty to cooperate. So that gets less financial rewards. I get into the economics involved in all of this, as well.
Again, I don’t want to get into too much detail except to say the law review article is coming out soon and if you have my second book, Introduction to E-Discovery, Chapter 6 begins with a version of this same article, from page 385 all the way to 404. Then in the book I get into all of the lessons of Qualcomm, which, of course, is the big e‑discovery ethics case of the decade. Let’s hope there aren’t any cases worse than Qualcomm.
ABA Model Rule 1.1 of Professional Conduct
KARL: Yep, that’s true. All right, well, let’s – let’s go through some of the rules here. Rule 1.1, Competence, of the ABA Model Rules of Professional Conduct says a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Okay, how do we get in trouble here with ethics and e‑discovery?
RALPH: This is the core problem and this is, you know, why we need more and better training. The problem is, e-discovery isn’t taught in 95% of the law schools, so lawyers are coming out of law school with no information on it, no e‑discovery competence. And in most law firms, except for a very few, typically the larger law firms – in most law firms, there are no e‑discovery lawyers that have done this for years and have gained competence in it one way or the other. So people are all sort of floundering around, which is why your radio show is so important and other educational efforts like that. <A little flattery of the interviewer never hurts.>
People, you know, they need the information out there. It’s why CLEs for e‑discovery continue to be filled even in these rough economic times. People understand that they need to learn this because the whole notion of discovery, it’s now all e‑discovery. Very few writings are created on paper, so 98, 99 percent of our writings today are electronically generated. Some of them are printed out <Yeah, like that Illinois lawyer. No, must stop thinking about that!>, but a relatively small percentage. Usually the hottest information in any case is going to be the inadvertent information in the electronic mails, the text messages, the instant messages, that sort of thing, where people are still saying, you know, incredibly dumb things. <Or including things on their legal web banned in most states.> So to ignore electronic information is to ignore writings. <Writings include photographs, you know, all kinds of photographs.> You just can’t conduct litigation <or Bar ethics investigations in Illinois> in a competent manner and not look at all of your writings, not look at the original electronic versions of writings instead of just relying upon, you know, what the client may happen to print out and say, “Here, take a look at this.”
One of my favorite cases I like to talk about maybe because it’s a Florida case and not everyone knows about it is Martin v. Northwestern Mutual Life Insurance Company. That’s a 2006 Westlaw case, 148991, Middle District of Florida, where the plaintiff’s attorney, he was suing for disability benefits. He produced a paper that his client – he was representing another plaintiff’s attorney … and they said, “That’s all we got; those are all the writings we have.” The insurance company, Northwestern Mutual, eventually proved that that was wrong. They eventually found that they had several thousand pages of email and other records that weren’t produced. And so they were called in front of the Magistrate Judge on a sanctions motion, and the plaintiff’s excuse was, “I’m sorry, Judge, but me and my client, we’re both computer illiterate. We didn’t really know how to get to that sort of stuff.”
Believe me, this excuse has been used for a long time in courts. It’s still used today in state courts all over the country. But in federal court, and when he did it in 2006, the response of Judge Pizo was to call that “frankly ludicrous.” That’s a quote. Judges don’t usually call what counsel says ludicrous. <Of course, they think it all of the time, but you have to be incredibly bad for them to actually come out and say it.> Here the judge said it in writing; sanctions were imposed against the plaintiff. This case represents the death knell of this whole, “Gee, Judge, I didn’t know” as a valid way to avoid doing your job and finding the writings, even though they haven’t been printed out. This “frankly ludicrous” reaction is what I think you’re going to find in every federal court in the country now. They’re just not going to put up with this excuse of I didn’t know how to do it. Although, honestly, we all know it still goes on in state court. But it’s only a matter of time before the state courts won’t put up with it either. <Please!>
KARL: You know, drilling just a little bit deeper into the competence issue, because there’s just so many areas where this can come up. You know, the podcast that you blogged a little bit about that I did with Judge Facciola and Tom French, we got into the economics. And, you know, this is going to cost a little bit of money sometimes to do this. And Tom French on the plaintiff’s time said, “Well, if you can’t afford it, you shouldn’t be doing it.” You know, he came right out and said that’s an ethical obligation that you have as the lawyers not to take the case if you can’t afford to do it right and to look at the data, which I thought was an interesting thought – I hadn’t really thought about too much, to tell you the truth.
RALPH: Well, that’s a rare breath of fresh air and honesty. But, you know, a lot of plaintiff’s lawyers don’t look at it that way. <Some will take any case that walks through the door.> A lot of defense lawyers don’t look at it that way. <They won’t admit they can’t do e-discovery either and so they just make a terrible muck of things.> In fact, what we’ve had – what we’ve seen – this is me getting controversial here for a minute – we’ve seen lawyers abdicate their responsibility to vendors. <Oh, well, just lost half of the vendors with that remark. Hope it does not piss off Karl.> Now, I know you work for a vendor, too, so you’ve seen it, but you don’t have to give – you don’t have to make any comments, but, you know, rather than their figuring out how to do it, they’ll hire somebody else to do it and these vendors will end up making a lot of legal decisions. <I just love consultants who say, I’m not allowed to give legal advice, but …> And the lawyers don’t really have a clue what they’re doing. <Better try now to get out of the big hole I have just dug myself into.> Now your company is, I know, one of the good ones and they’re honest, but you and I know that they’re not all like that and that vendors are in business to make money. So what they end up doing is over-review; they look at too many documents. The vendors are not really helping to keep the expenses down because it’s not in their best interest to do so. <Of course, the lawyers love it, too. They are happy to be mislead. More review equals more billings. The only one that loses is the client, but no one has told them what is really going on.>
I think that one of the real reasons e-discovery is too expensive is that lawyers don’t know how to do it right and so they over-delegate it to vendors that don’t have the same motivation as a lawyer might to save the client money. <I bet you will never see this quote in the vendor driven e-discovery media.>
KARL: One other area of competence I want your thoughts on a little bit is you mentioned the split between large and mid-size law firms, between those who have e-discovery groups or, you know, focus lawyers that understand e-discovery, and those that don’t. Isn’t it also a battle even with the structure, say, you’ve done it right and you have that competence established, to get every lawyer to pick up the phone when they have a matter and say, “Hey, I may have an issue here”?
RALPH: Yeah, it’s – it’s a real educational challenge. <He’s baiting me here. Probably pissed about my vendor slams. Got to be careful.> The large firms, like my firm, we have the advantage in that, you know, we can have a few people become an expert in it. But then we have the disadvantage of having literally hundreds of litigation lawyers and training them to pick up the phone and do that, that just takes time. Because it’s – you know, it’s like, can you teach an old dog new tricks? Yes, you can, but it takes a lot of effort. Litigators are used to doing discovery on their own. It’s a hard shock for them to realize that there may be part of discovery that they can’t handle. They don’t like to admit that, but slowly they will start to and will turn to specialists for help.
This point was learned recently by a very good firm, Reed Smith, who has some 1500 lawyers, including some excellent e-discovery lawyers. Yet in the Bray and Gillespie v. Lexington Insurance case just this March, the law firm itself was sanctioned for e-discovery mistakes. It was sanctioned for the actions of two of its attorneys, shareholders. It was an Orlando district court case. And it’s not because they didn’t have the law firm resources; it’s because they didn’t ask for the help: These two shareholders just did it on their own.
This is the wake-up call, the Bray and Gillespie case. I think it’s a huge wake-up call for law firms to start imposing some discipline in making sure that larger firms actually use the resources that they’re given. The citation for that, by the way, is 2009 WestLaw 546429, Middle District Florida, March 4, 2009. I think that’s a very important case. I know my good friend Browning Marean of DLA Piper thinks this case is more important than the Qualcomm case because it sends a message to the law firms themselves that you’ve got to make sure that the knowledge is actually being used. The courts are not going to tolerate the kind of activity that happened in Bray and Gillespie and others which were, in the judge’s view at least, a clear violation of the rules of what’s required for the format of production.
Ralph Losey is the lawyer, writer and educator behind the e-Discovery Team blog. Ralph has been practicing law since 1980 and playing with computers and cyber-communications since 1978. He is a shareholder at Akerman Senterfitt, holds the highest AV peer rating by Martindale Hubbell, and is identified as a SuperLawyer in the field of IT.