The Masters Conference 2008: The “E-Discovery Three”

Masters LogoAfter Judge Facciola’s keynote, he was joined on stage by Judge Paul Grimm (United States District Court for the District of Maryland) and Judge Ronald Hedges (now of Nixon Peabody LLP) for a fantastic panel discussion on a myriad of e-discovery related topics. As Judge Hedges remarked at one point, you have up here two of the most prolific Judges in e-discovery, ask your questions … and the audience did.

But first, Judge Grimm took a few moments to discuss the process and effects of Federal Rule of Evidence 502 since he was so instrumental in it’s creation and eventual passage.

First, Judge Grimm stated that the new FRE 502 now completely eliminates the uncertainty as to the standard of waiver. Previously, depending upon the jurisdiction, you were either under a strict test, a more lenient (voluntary) test, or an intermediate reasonableness test. The substantive law in Maryland followed the intermediate reasonableness test, and that is what FRE 502 follows. Judge Grimm pointed out that FRE 502 is NOT restrictive to electronic evidence, unlike some of the amended Federal Rules of Civil Procedure that are only applicable to electronically stored information.

Judge Grimm continued that with FRE 502, we now have a unified standard that deals with privilege or work-product information which is an enormous benefit.

Judge Facciola then asked the question to the audience: “In light of FRE 502, how many of you STILL review every single piece of paper?” Over 3/4 of the room raised their hands and Judge Facciola pressed as to why. One audience member stated that there are some documents that you just don’t want the other side to see – it looks like a vulnerability, a chink in the armor. Laura Zubulake spoke up and confirmed this fear and stated that as a prior plaintiff, she would have been thrilled to see a document from the other side that was beneficial to her case, saying, “once it’s in my brain, it doesn’t go away.”

Another other audience member answered Judge Facciola by saying that it wasn’t a privilege issue, it was more about the fact that he just really wants to know what’s in the collection of documents – if the client can’t tell him, he doesn’t feel that he’s doing his job unless he thoroughly inspects every document in the collection to know what’s there.

Judge Hedges predicted that it will take at least 5 years before there is a general comfort level with FRE 502. Another audience member mentioned that a large corporate client has told him NOT to review every single piece of paper – that they would not pay for the time spent on such a review. The client didn’t think there was anything inside the document collection that would hurt them.

Judge Grimm then changed directions a bit and stated that the notion of a pre-litigation duty to preserve is a big concern for him. He believes that the duty to preserve is based on the same standard of proportionality found in FRCP 26(b)(2)(C). Judge Grimm fervently reminded the room that the duty to preserve is a COMMON LAW PRINCIPLE and is NOT a duty created by the court. He stated that it is a common law rule, and if you want to further define the problem, you should propose an FRE 503 rule or something similar. He continued, “you don’t NEED a court order [for preservation] because it’s a common law rule.”

Judge Grimm asked the room: “By a show of hands, how many of you say that preservation costs are the biggest burden today?” Over 3/4 of the room raised their hands. One audience member who works at a large New York City law firm and represents large corporations stated that they will continue to over-preserve because of their fear of sanctions similar to that found in the Qualcomm case.

The panel ended with repeated advice to TALK to the other side about discovery. They all repeatedly iterated that so many issues could be solved in the discovery phase if both sides just agreed to cooperate and became more open about their systems, and what they wanted to request. Judge Grimm mentioned his just authored opinion, Mancia v. Mayflower, which covers the topic of cooperation (Ralph Losey, another speaker at The Masters Conference, already has a great write up of the opinion).