I attended the Northern Kentucky Law Review’s Spring Symposium entitled “E-Discovery: Navigating the Changing Ethical and Practical Expectations” yesterday sponsored by the Chase College of Law. Here’s the first and second posts.
The last panel was broadly entitled “Best Practices in E-Discovery” and featured a great group:
- Richard Bales (moderator), Professor, Chase College of Law
- Thomas Y. Allman, Co-chair, Sedona Conference
- Steven C. Bennett, Partner, Jones Day LLP
- Stephen Gensler, Professor, Univ. of Oklahoman College of Law
- Hon. Robert E. Wier, U.S. Magistrate Judge, Eastern Dist. of KY
Each participant on this panel was assigned a topic to address, but it really worked out best that they all had a sort of free-for-all in a meta-discussion.
Wier: The Federal Rules of Civil Procedure are meant to codify common sense. Cooperation is a common sensical endeavor. The rules are meant to ensure the just, speedy, and inexpensive determination of every action (FRCP 1) – that is the mindset I use when I approach e-discovery issues. The rules SHOULD anticipate problems with an e-discovery and ease concern. Each rule is designed to establish cooperation, just like some cooperative element is required for every motion that is filed. Cooperation extends to third parties as well.
Allman: I’ll put in a plug here for the Sedona Conference’s Cooperation Proclamation – it is the “tip of the iceberg” effort from Sedona to support what Judge Wier just discussed. Although I will admit that coming recently from a large corporate legal department, I have mixed feelings about the Cooperation Proclamation.
Bennett: I am not a computer programmer and not extremely technical, but I am capable of working with experts and I can become an “expert for a day” long enough to explain e-discovery issues to a judge or jury. Some broad guidelines that I’ve developed: 1) be prepared – you don’t want to be making this stuff up in the middle of litigation; and 2) always remember that technology is NOT the solution – technology is ONE PART of the solution. At the end of the day, you must be prepared to negotiate – when you go into a meeting and say “I can give you this, this, this, and this right now, what more do you want?” then this makes you look better and more cooperative. But of course if you promise something, you better be able to deliver.
Gensler: There is NO duty in the rules to mandate cooperation, but there ARE some rewards for cooperation. Why do parties cooperate? It really comes down to self-interest. As a theme, cooperation is dead-on – there are ways to do things better if we stop fighting all the time.
Bennett: Such a fluid vendor environment – in the first instance, there was an enormous explosion of vendors involved in this area but we are now experiencing a consolidation in this area. There is a shedding of less effective players, especially in this economic environment. We may eventually see what looks like a “big 6” of vendors in this area but we’re not there yet – it will probably take another 5-10 years But in the current environment, we have any number of folks that promise to solve everything.
Allman: The role of a vendor on the team is touchy – regardless of whether it’s the inside or outside lawyers who dominate the project, the vendors NEED supervision. One of the fascinating points in the Qualcomm case was the focus on the ethical rules of supervision.
Wier: What I always look for in a dispute is who is acting reasonably and un-reasonably – the un-reasonable party is who I glare at. How do you get un-reasonable? You cannot reasonably approach a topic for scope or burden without a lot of planning and due diligence. I find that many lawyers go into a meet & confer and have only devoted a passing thought to these issues. You can’t fly by the seat of your pants – these duties are now built into the new rules. Under FRCP 26(g), you’re signing something that states you have done your due diligence and considered burden and thought it through.
Gensler: There are different tiers of vendors out there. A good practice is to have an up-to-date data map for each of your clients. During the ramp-up to the FRCP amendments, one of the biggest complaints that the committee received was on the cost of privilege review because each attorney said they had to review every document PERFECTLY. As an example, imagine that every person in this room was a document – would I just wave my hand over the crowd for review? Would I do a pat down? Would I do a full-body cavity search? Most lawyers want to do a full-body cavity search.
Allman: When we were looking at proposed FRE 502, we were not specifically concerned with how a “quick peek” would go, rather we were concerned about the fact that each state had different rules to deal with inadvertent waiver so that you never knew what you would be faced with. FRE 502 does a beautiful job at addressing this mainly by applying the rules to every state. So now the drug company as part of an MDL that may have a document waived on one state can prohibit that same document to be admitted in another state.
Wier: FRE 502 applies to attorney/client and work categories, but it does not apply to legal malpractice type claims. Consider the power of an agreement with the power of a court order. Certainly an agreement between parties has some power, but would NOT have an effect on non-parties. But if you get a court order, then you have more enforceability beyond the case – it extends to protect you in other federal courts and state courts.
Allman: I would like to draw your attention to Rule 37(e) – this little notice rule was included in the 2006 FRCP amendments and this brings common sense into the sanctions process. The words to emphasize here are “good faith,” which is a phrase stuck in here in conjunction with sanctions in the federal rules. In some ways it is a more useful tool than the cooperation mantra that we’ve discussed. Even Qualcomm has a long quote on good faith. People are beginning to understand that they have a duty to act in good faith – the rules and court decisions are picking up on that.
Wier: Judges are generalists and not experts. If you have an issue in e-discovery, you need to present the information in a manageable way to educate the judge on how the intricacies fit together.
Bennett: The past is prologue – what you see in front of you is one of the last lawyers who learned how to do e-discovery on paper. In law school today, you have been raised on digital media and instant access – there is no going back – it is critical to the commerce of the country and the world. But things are going to get more complicated, more voluminous. At some point in the near future, there may be molecularly or biologically stored data.
Gensler: My crystal ball is “reasonableness” – go back through the standards that are developing and you’ll see that reasonableness is being woven into all of this.