It’s NOT All About the Technology

In our discussions of the docNative Paradigm, there has been a tendency to focus on e-discovery technology more than the actual discovery process. But the process itself is under scrutiny from the judges who must deal with it and they are offering some interesting observations about what they want. 
Much attention has been paid lately to the string of decisions involving the use of search technology handed down by  Magistrate Judge John Facciola in U.S. v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008), and Equity Analytics v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008), as well as Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., Civil Action No. MJG-06-2662 (D. Md. May 29, 2008).
 
Judge Facciola opined that both lawyers and judges are technological neophytes who struggle to compose adeqate key word search terms for finding privileged documents in their ESI collections and should, instead, rely on experts to do so. Stating his preference that such searches be designed by qualified persons, Judge Grimm is willing to allow lawyer-initiated keyword search IF counsel can demonstrate adequate control of the process but sets the bar high for meeting that standard when he states: “Use of search and information retrieval methodology, for the purpose of identifying and withholding privileged or work product protected information from production, requires the utmost care in selecting methodology that is appropriate for the task … [and] careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.” 

So high in fact that George Socha has mentioned at several West LegalWorks where we are speaking together that he believes the Creative Pipe decison requires law firms to engage outside experts for EVERY case. But that’s a discussion for another day.

But often overlooked in these discussions about the technology is the underlying prinicple of FRCP Rule One that requires the “just, speedy, and inexpensive determination of every action.” .  Indeed, 24 judges (including the Honorable Judges Shira Scheindlin, Andrew Peck, Paul Grimm, David Waxse, John Facciola and Herbert Dixon) have signed off on the Sedona Conference Cooperation Proclamation, issued on Oct. 7 and designed to refocus on litigating cases on their merits, not just on eDiscovery concerns.  Crafted to deal with the use of technology to frame overly broad discovery requests and repsonses, the Proclamation focuses instead on the process.

And it has already been endorsed in at least one opinion. Not surpisingly, Judge Grimm in  Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008) uses a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s opinion, Rule 26(g) is “the least understood or followed of the discovery rules.” and he clearly states that much of the blame for high priced e-discovery costs lies here and not with the e-discovery tools themselves.
 
You can read a very thoughtful analysis of this issue at Ralph Loseys blog but I think the point to keep in mind is that you need to use technology to speed up the discovery process and not bog it down in endless fights over privilege and production.  And THAT is exactly the point of the docNative paradigm.
 
That’s my take anyway …now tell me what you think.  

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1 comment so far

  1. Ralph Losey on

    I would like to hear the counter-argument to your opinion on this. Truth is, plenty of attorneys do disagree, but I am not one of them as you well know. The non-cooperators have so far been silent, no doubt because it is such a hard case to make. Still, they have some valid concerns, like a passive judiciary in some courts that allows, sometime even rewards the over-aggressive, and the concern re waiver of work-product. If you ever read a good defense for contra-paradigm, the silent-majority, please let me know.


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