Archive for May, 2009|Monthly archive page

E-Discovery and Ethics

In the latest recording for the E-Discovery Zone, a series of interviews that Browning Marean and I do on a semi-regular basis which is hosted by TechLaw Solutions, Browning and I had a fascination discussion with Ralph Losey. As you may know, Ralph is a a shareholder of Akerman Senterfitt, Co-Chair of Akerman’s Electronic Discovery practice group, and Adjunct Professor at the University of Florida School of Law teaching e-discovery and he has a blog called The E-Discovery Team which always has incisive articles on the e-discovery space.

Earlier this week Ralph posted about the ethical problems of attorneys who don’t  know enough about e-discovery or, as Ralph put it  “abdicate the traditional role of lawyer as master of discovery” .  The result of this abdication has been a rise in e-discovery expenses, an increase in lengthy and unecessary motions practice and a susbsequent upturn in sanctions against law firms.   Browning and I couldn’t resist a chance to ask about this issue and Rlaph obliged with pointed remarks about the failings of law schools and bar associations to provide certification or competency training in this field. 

Ralph feels the solution is obvious and that what we need is more  ” Education and training, combined with recognition and affiliation of experts where competence has not been attained. ”   The current efforts by law schools are mininal:  Ralph teaches a course at the Universtiy of Florida, Georgetown has it’s well publicized course in the spring and most recently the University of Washington has offered a certification course.

But overall the legal education system is not rising to meet this challenge. Training 50 or so people at a time once  a year in three schools is not going to significantly raise the educational bar enought to make a difference.  Ralph suggested that a commercial entity other than a vendor (vendor efforts, he feels, have been too self centered on the objective of the scaring attendees sufficiently that they will immeidately turn to the vendor for assistance)  or a web entrepeuner will rise to the surface in the next year or so and fill the void.

To hear the complete conversation go to the E-Discovery Zone page on the TechLaw website and be sure to visit Ralphs blog: he promises part two of his discussion on this issue next week.

When Does The Duty to Preserve Begin?

This question used to be one of academic curiosity raised at CLE’s but it is becoming more and more part of the practical reality of litigation.  Just yesterday I had a call from a local firm with a question about this very point (more on that below) and anyone who attended the International Litigation Support Leaders Conference  last week in DC knows that it is the subject of a spirited disagreement between Craig Ball and Ralph Losey.  Since both these men are acknowledged experts in the field, the disagreement only serves to highlight the lack of definition around this topic.

The case in question, Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., et al.,  2009 WL 910801 (D.Utah), is a patent infringement matter that involved missing documents and e-mails.  Plaintiff had carried on similar litigation against Gateway and documents from a chip manufacturer used by both Gateway and Dell were produced in the first suit and not the second. The court ruled here that the defendants retention policy was inadequate (perhaps deliberately so) and that their duty to preserve extended back eight years before the litigation commenced because of the other similar litigation in their industry of which they were aware and which they were trying to avoid.   Specifically, the court found that leaving docuemt preservation to individula custodians was not an adequate policy.

Now Craig and Ralph are friends of mine and they are also two of the most professionally polite individuals I know.  Their disagreement over this point is of great import and I won’t attempt to speak for them. They have each articulated their positions online, Craig at EDD Update  and Ralph on his blog,  The E-Discovery Team .

The point is that the analysis of when the duty to preserve arises is now part of the analysis of case strategy and should be part of any firms ongoing consultative discusssions with their clients.  When does the client know or should know that their is a dispute that might reasonably be held could lead to litigation and that they thus are obliged to find and preserve all relevant documents?  The call I had yesterday is a good example.

In that case, litigation was filed in 2008 and one party is not producing some email claiming that they upgraded their network a year before the filing and lost some documents in that upgrade.  Further research, however, revealed emails between the parties about their disagreement several months before the upgrade.  Would they not, then, have had an obligation to preserve all relevant documents prior to the upgrade and, in fact, would they not have had an enhanced obligation to make sure these documents were preserved before beginning any upgrade?

These types of discussions are what bring more and more into focus the need for a consultative approach to working with law firms and their clients in order to explore these issues before they arise.  Because once they do arise, if two experts as prominent as Ralph and Craig can disagree about where the obligation lies, then making that decision during litigation will be an extremely lengthy and costly process.

Collaboration and Search Terms

Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York has given us some more definition of what judges mean by “coperation” within the framework of the Sedona Cooperation Proclamation in his recent opinion in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009).  In fact, the opinion opens up with telling words as the very first paragraph states:

“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”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.”

The case involved disputes over delays and defects surrounding the construction of the Bronx County Hall of Justice and the issue at hand was how to search emails of the non-party contruction manager of the project, including the separation of email relating to other projects and the formualtion of specific search terms for the relevant emails.

The court quoted decisions by Magistrate Judges Grimm and Facciola discussing the best way to agree upon proper search terms  but noted that apparently those explanations had not  “…gotten thru to the members of this District.”   He then went on discuss the need for care and collaboration in selecting search terms,  highlighting the ned for careful advance planning.

He then closed with a very specific admonition:

“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.”

Anyone looking for a clear delineation of how judges view the process of cooperation, specifically with regard to drawing up search terms, would dow ell to read this decision. The full text can be found at  http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_William%20A%20Gross.doc