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United States Magistrate Judge Andrew J. Peck for the S.D.N.Y., and practicing attorney, David J. Lender, have written a Top Ten list of e-discovery issues that is worthy of your attention. 10 Key E-Discovery Issues In 2011: Expert Insight to Manage Successfully (Metropolitan Corp. Counsel, April 03, 2011). It is always good to see a judge and attorney get together to offer practical advice, and this duo does it well. Although you may say it’s elementary, I cry out its excellence. See Watson and Holmes in The Crooked Man (Doubleday, page 412).
Here is the list, which, although the article does not expressly say so, is, I assume, listed according to their evaluation of order of importance:
- When To Collect?
- Rule 502
- Privilege And Privilege Logs
- Social Networking
- Cloud Computing
- Foreign Discovery
Now that I have introduced you to their practice pointer list, and provided suitable praise (I really do like it, and at around 4,000 words, you should take time to read it), let the quibbling and analysis begin! Of course, out of due deference to Judge Peck, all of my points of contention are directed to the contributions of David Lender, a mere non-judge mortal like myself. You know my methods, readers. See Sherlock Holmes in The Crooked Man (Doubleday, page 416).
The Importance of Sanctions and Cooperation in the Perennial Battle of Good Versus Evil
First of all, if the list is in order of importance, then I must object to placing sanctions in the number ten position. It should be nearer to the top in view of how it drives so much of current e-discovery practice. By “drives,” I mean the fear and dread of sanctions motivates much of the work. Then when it happens, when one side or another moves for sanctions, or even threatens it, it becomes all consuming. So, I think sanctions are more important than the article would suggest by its last place finish. Still Peck and Lender nailed it when they called 2010 “the year of the sanctions.” I agree. And 2011 is looking like more of the same. (Perhaps, I hope, 2012 will be the year of education?) Peck and Lender reach the same conclusion about 2011 and end their article with the following astute advice:
[W]e expect 2011 to continue to be dominated by motions for sanctions for alleged preservation failures. As discussed throughout this article, the best insurance policy against the risk of significant sanctions is cooperation and transparency. Working with your adversary and the court up front can help raise and resolve issues early, and may lead to limiting the scope of preservation and production to more significant players, thereby minimizing the likelihood of mistakes occurring. However, when mistakes invariably occur, it is important to be candid and open with your adversary and the court and discuss reasonable solutions to the problems. This is the best way to avoid distracting motions and the risk of case dispositive sanctions, and instead allow all of the parties to focus on the merits of the case.
Cooperation is the way to go, strategic cooperation that is, which is far different from capitulation. So I can’t quibble with their placement of cooperation at the top of the list. It is key. It should protect you from sanctions practice, as they say. But spoliation is not always the result of the empty-headed with pure hearts. Innocent mistakes do not explain everything. Sometimes the spoliation is intentional, even criminal. When you have eliminated the impossible, whatever remains, however improbable, must be the truth. See Sherlock Holmes in The Sign of the Four (Doubleday, page 111). You may sometimes encounter Moriarty-like attorneys and litigants who simply will not cooperate. Oh, they may well feign cooperation. For instance, they may agree with your proposed search terms, but only because they know they stink and won’t uncover the key documents, the evidence that they have every intention of hiding or destroying.
Yes. Evil exists in the world of e-discovery, just like it does in the world of Sherlock Holmes. Sherlock knew better than to try to cooperate with James Moriarty. All he could do was try to stop him, to expose him and bring him to justice. It’s a wicked world, and when a clever man turns his brain to crime it is the worst of all. See Sherlock Holmes in The Adventure of the Speckled Band.
We all know a few Moriarty types in the law, and until they are put away, there will always be a place for serious sanctions. But please, judges, listen to Judge Peck’s sage advice in this article, and don’t over-punish the poor bumbling John Watson types, the empty-head pure-heart types that consume so much of our time in sanctions practice today, especially if they are candid and cooperate. His ignorance was as remarkable as his knowledge. See A Study in Scarlet, Part I., Ch. 2. Also, see The Adventure of the Blue Carbuncle:
“No, no. No crime,” said Sherlock Holmes, laughing. “Only one of those whimsical little incidents which will happen when you have four million human beings all jostling each other within the space of a few square miles. Amid the action and reaction of so dense a swarm of humanity, every possible combination of events may be expected to take place, and many a little problem will be presented which may be striking and bizarre without being criminal. We have already had experience of such.”
Slap the wrists of those involved in the inevitable accidents of modern practice, impose some sanctions to even the playing field, and then send them on their way. But if you do run into Professor Moriarty types, do not hesitate to send them to jail where they belong. Do not be fooled by their ingenious arguments and smooth smiling ways. As Sherlock noted: A complex mind. All great criminals have that. The Adventure of the Illustrious Client at page 987.
See and observe, my dear Judges. The same advice goes for practicing attorneys. As Holmes said in The Adventure of the Empty House, “I had little doubt that I had come to the end of my career when I perceived the somewhat sinister figure of the late Professor Moriarty standing upon the narrow pathway which led to safety.” There are those attorneys and litigants who will stop at nothing to prevail. Know one when you see one. If you are not careful, they can become career-enders. Just ask Qualcomm’s former general counsel.
Everything in this World is Relative
Proportionality is the second issue on the list of Peck and Lender. I agree that this is very important to e-discovery practice today. As Holmes correctly stated, “Everything in this world is relative, my dear Watson,” The Dying Detective at page 933. Indeed, it is. The effort and expenses required for efforts to be considered reasonable, and thus acceptable by a court reviewing any mistakes, should be far less for a $100,000 case than a $100,000,000 case. It is just simple common sense, and it is about time for all attorneys and judges to realize this. I totally agree with Peck and Lender who say:
Thus, it is not uncommon for companies to end up spending hundreds of thousands of dollars to produce millions of pages of documents in a single litigation.3 When compared with the reality that most trials focus only on no more than a few hundred documents from certain key custodians, it becomes abundantly clear that something is broken in the process and needs to be fixed. A corollary to the principle of cooperation that is floating around electronic discovery circles these days and that may provide a solution to this imbalance is “proportionality.”4
3 According to the Socha-Gelbmann Electronic Discovery Survey, electronic discovery costs exceeded $2.7 billion in 2007 and were expected to top $4.6 billion in 2010.
4 See Tamburo v. Dworkin, 2010 WL 4867346, at *3 (N.D. Ill. Nov. 17, 2010) (“If courts and litigants approach discovery with the mindset of proportionality, there is the potential for real savings in both dollars and time to resolution.”) (citing John L. Carroll, Proportionality in Discovery: A Cautionary Tale, 32 Campbell L. Rev. 455, 460 (2010) ).
Proportionality is the answer. As Peck and Lender go on to conclude:
Thus, in order to make litigation more affordable and focused, the entire paradigm of discovery needs to change. Litigants and courts should approach discovery differently depending on what is at stake in the case, and how complex the issues are expected to be. There simply is no reason in most cases to produce thousands upon thousands of documents from dozens of custodians, simply because they have touched an issue, when the dispute really centers around a handful of key players who will have most (albeit, not all) of the documents that are potentially relevant to the case.
When to Collect?
Their issue number three is When to Collect? It is an interesting question. Do you collect at the very beginning as a precautionary measure for assured preservation? Or do you wait and collect at a later time? How much later? How much do you collect? Do you collect some right away to get an idea of the merits, to do early case assessment? As Holmes said, “’Data! Data! Data!’ he cried impatiently. ‘I can’t make bricks without clay.’” The Adventure of the Copper Beeches at page 322. This should be the motto of every e-discovery practitioner at the beginning of every case. In my opinion, some collection is almost always required. I can’t make bricks without clay.
The article does not address all of these collection issues, but instead focuses on the preservation issues. It makes the good point that collection should not always be required for preservation. Again, it is an issue of proportionality and evaluation of the circumstances of the particular case at hand. As Holmes said, “Life is infinitely stranger than anything which the mind of man could invent.” A Case of Identity at page 190. In some cases, you should collect, in others not. It all depends on the near infinite possible facts you are presented with. The variety and complexity are astounding and so per se rules are dangerous. What is reasonable in some situations is unreasonable in others. Lawyer judgment is required. That in turn depends on experience and education. “Education never ends, Watson. It is a series of lessons with the greatest for the last.” The Red Circle at page 907. Yes. I’m back to that again, as I contend that education is one of the four pillars of e-discovery excellence. That is why I started e-Discovery Team training. Are you continuing your education as Sherlock advises?
One of the other pillars I call Metrics and Technology. It has to do with Search, Software, and Science. Judge Peck is famous for his wake-up call to New York lawyers that there was a whole science to finding relevant evidence that went beyond go-fish games of abstract guessing of keywords (a practice still followed by the majority of lawyers everywhere who even bother with e-discovery to begin with, and most lawyers, even in NY, still do not do e-discovery at all, never mind poorly; they just don’t do it):
This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”).
Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar – even those lawyers who did not come of age in the computer era – understand this.
William A. Gross Construction Assoc. v. American Manufacturers Mutual Ins. Co., 256 F.R.D. 134, 134, 136 (S.D.N.Y. 2009) (Peck, M.J.).
Peck and Lender agree with my proposition that we need to fight fire with fire. As they put it, “Since technology created the volume, lawyers have turned to technology to attempt to solve the review problem. There is far more to search technology than keywords and Boolean connectors.”
As Peck and Lender noted (Fn, omitted), ” [K]eyword searching will produce less than 50 percent of responsive ESI. There are more sophisticated search tools available, such as clustering and concept searching techniques instead of or in combination with keyword searches that may be considered.”
The authors go on to discuss TREC. More on that important subject in a forthcoming blog. For now I am reminded of another famous saying of Sherlock Holmes: “What one man can invent another can discover.” The Adventure of the Dancing Men at page 52
Rule 502, Privilege and Privilege Logs
Issues five and six in the article pertain to privilege. The concern of privilege waiver significantly drives up the cost of most ESI reviews. Is it worth it? Most clients apparently think so, as they seem willing to continue to pay for it. But for how long. Eventually parties may start forgoing second and third reviews, and may start relying on the protection of Rule 520. The Advisory Committee Notes to Rule 502(b) encourage litigants to rely on technology alone:
“Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken ‘reasonable steps’ to prevent inadvertent disclosure.”
I do not think we are there yet, but the article makes a good pitch for it, and Peck and Lender expect new decisions to come out in the next year or so expressly sanctioning the use of technology-based privilege reviews. I hope so.
Social Networking and Cloud Computing
Points seven and eight in their top ten list are on the hot topics of the day of social networking and cloud computing. I wish they had gone into a little more depth here. Instead, they mainly raise questions, such as: [D]o companies have a duty to preserve and produce information posted by employees on such sites [social media] when done solely for personal use?
Isn’t that really just a question of custody and control? They may have to provide notice to employees of a duty to preserve, but collect? That is not their computer. Not their information. What about Quon and the Supreme Court’s refusal to accept cert of the Arch Wireless appeal? Maybe in the next article they will give these points more than a cursory nod.
The article also includes the complex area of cross-border discovery. Again, this is a subject too arcane to really get into with any depth in a short article like this. They make an effort, but it does not really work for me. I think their best advice on this subject was their closing comment:
“Counsel are advised to consult with experienced data privacy counsel in the foreign country to better walk the tightrope of conflicting U.S. discovery obligations and foreign data privacy laws.”
Andy Peck, a well-known scholar of both electronic discovery and Sherlock Holmes, and David Lender, an excellent Watson if ever there was one, have written a good, short article on e-discovery. It is an easy read, and a good introduction to most of the hot topics of the day. At the same time, for most of the topics at least, the article provides some real depth and food for thought. It is hard to do both. I struggle with that every week.
“But he had not that supreme gift of the artist, the knowledge of when to stop.” Sherlock Holmes, on Jonas Oldacre, in The Adventure of the Norwood Builder.
About E-Discovery Team
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 partner in a major national law firm and Professor of Law at the U. of Florida.