Archive for April, 2010|Monthly archive page

Poor EDiscovery Practices in the Real World

Last week, a motion was filed to issue a subpoena to President Obama in the Rod Blagojevich criminal trial in the U.S. District Court in Chicago. The only problem is that when a redacted copy of the subpoena was released to the public, the “redacted” information was available by simply clicking on the redaction.  If this were an e-discovery production the receiving party could have been given privileged information and it seems highly unlikely to me that this type of shoddy technical performance would fall under any definition of “inadvertent” for purposes of a clawback argument or, even more important, an evidentiary waiver of privilege.

Using a redacting tool is not a terribly difficult technical task. If lawyers can’t get this right, how can we expect them to handle the more difficult tasks of e-discovery practice?  It all comes back to education and it’s clear from this, the third major redaction blunder in the past eyar, that lawyers are simply not learning even the most basic technological tools. Even more reason to engage the services of a trusted advisor to help them avoid these types of mistakes.

For more on my thoughts on this subject, see the article on LexTek entitled Blago Redaction Snafu Offers Bad Example of eDiscovery Practice

Survey Says ….

So last week I commented on my work with the The Law Bulletin Publishing Company to conduct their third annual survey of Illinois attorneys regarding their experience with technology and electronic discovery.  The biggest surprise in the survey was the high number (30%) professing ignorance about the FRCP rules on eDiscovery.

I assumed that given the publicity around the 7th Circuit ED Pilot Project, most Chicago attorneys would have a high degree of exposure to the topic by now. I was wrong.  Only 38% of the respondents had heard of the project. Only 24% had heard of the Sedona Conference, only 9% had heard of the Georgetown University Law School ED educational program and, most shocking, only 7% recognized the EDRM project.

These numbers are disconcerting but upon reflection not unusual.  Consider the following.  My old friend Andy Adkins, founder and director of the University of Florida Levin College of Law’s Legal Technology Institute Legal Technology Institute, is a long established expert in the field of law office technology and practice management.  He recently released the 2010 Perfect Practice Legal Technology Institute Study (PP-LTI Study) and guess what he found?

Law firms are consistently failing to embrace even relatively simple technology, like dual monitors, that could increase their efficiency. And when it comes to applications such as document management or case management, the numbers are appallingly low.  A study in 2000 found that less than 50% of legal professionals used a document management system. A decade later, the PP-LTI Study found that 52% did not use a document management system, a number that was skewed upward when you consider that at large firms,  80% of attorneys reported using a DMS.

The numbers in practice management systems are even worse. In 2000, 25% of legal professionals reported using a case management system.  Andy reports that he thought ” … that number would have doubled in ten years,” but the 2010 survey indicated that only 32.7% of respondents were using case, matter, or practice management software, with large firms once again leading the way. 

(By the way, The PP-LTI Study costs $395 but  you can download a free executive summary at the LTI web site)

So what does all this lack of technology usage mean for us in the e-discovery world? Less work, that’s what.

Why?   Because more and more, our clients are bringing their work in house. According to the results of the Association of Corporate Counsel‘s 10th Annual Chief Legal Officer Survey , 29% of the 970 chief legal officers who responded to the survey said they’re planning to add to their departments this year, up from 23 percent last year. Meanwhile, more than a third (34 percent) said they’ve cut spending on outside counsel.

Think it’s just the recession?  No the same survey showed an upswing in caseloads.  Think  it’s  just the older generation?  Recall, if you will, the column by several weeks ago where he mentioned the law student who asked him what was the least amount of ED knowledge he needed to get by.

No, when 5% of the respondents in the Illinois survey said they DIDN’T KNOW what Web application they were using and when commentators like Mike Arkfeld say 99% of the litigators in the country have no idea what they’re doing with e-discovery, I think maybe the reason is that attorneys are not paying any real attention to technology. 

It reminds me of a comment by Jim Keane back when he and Monty Ahalt were trying to get colleagues to embrace e-filing.  Jim said that if doctors used technology the way lawyers did, we’d be attaching leeches to our arms to get blood samples. 

Seems like maybe we’ve progressed to simple blood letting instead of leeches but what’s clear is there is something wrong with the way we educate lawyers. But that’s a column for another day  ….  or two.

3rd Annual eDiscovery Survey of Illinois Lawyers

I recently conducted the third annual survey of Illinois attorneys regarding their experience with technology and electronic discovery for the  Chicago based Law Bulletin Publishing Company.  Responses to this year’s survey (185) were somewhat lower than the previous year, returning to the level of the number of respondents in 2008, the first year of the survey, and also reflected a higher number of small firms than in previous years.  On the other hand, the highly respected annual Socha-Gelbmann Electronic Discovery Survey only had 155 respondents, so perhaps our demographic is consistent with other surveys being taken.

IT staff and lit support personnel were also included in this years survey, which consisted of 18 questions asking about level of exposure to eDiscovery matters and experiences with electronic discovery vendors and products. The final question asked for an opinion on the most important issues in the eDiscovery practice area. 

Also this year, rather than asking respondents to rate their products or vendors, we asked several new questions. The first was “Do you think that e-discovery vendors are effective in defining their services?” 63% said “No” which may well explain why no single vendor or product is garnering significant market share.

We next asked “If you saw an ad for an e-discovery provider in a reputable legal publication, would it influence your decision on which vendor to consult?” 53% said “No” which, of course, means that nearly one half said “Yes.”

Finally, we asked “Do you feel an e-discovery provider that services the entire ED process is more useful than one that only specializes in a portion of the process?” 66% said “Yes” with the most common explanation being similar to this one: “Consistency in handling [all aspects] reduces any chance of duplication of work and/or costs.” The common answer from those who said ‘no’ was, “Some cost-savings are possible with a ‘soup to nuts’ company, however, often times specialists provide better quality of service and degree of expertise than a one-stop shop.”

You can view the full report at LexTek Report, the technology blog for the Chicago Lawyer magazine which is maintained by David Glynn, Director of Research & Product Development at the Law Bulletin.

More Craziness

Here’s a great response to my post on the Gucci v Curveal case by Chris Dale of the E-Disclosure Information Project

The article by the respected US e-Discovery commentator Tom O’Connor Why the Rest of the World Thinks we are Crazy concerns an Opinion of the District Court of the Southern District of New York which orders a Malaysian bank, not party to the proceedings, to produce documents despite a Malaysian statute prohibiting them from doing so. I volunteer to speak on the half of “the Rest of the World”

I took part in an interview recently with Tom O’Connor and with Browning Marean of DLA Piper US. Amongst our subjects was the perpetual collision between US demands for documents (for FRCP and other purposes) and the data protection laws of other countries, particularly the EU. There are many aspects of US discovery which amaze the rest of the world, and not generally in a nice way, but it is your playground, and if you want to use it to fight in, that is up to you. It is not as if any of the rest of us claim to have got things right.

Where US discovery does impinge on the rest of us is when its demands for documents conflict with the privacy, data protection or, in this case, banking secrecy, laws of other countries. The playground bully marches into our yard, and expects us to follow his rules.

It is not in fact quite as simple as that, and it is wise for outsiders to avoid adverse commentary on whether an Opinion of a foreign court is correctly decided under its own law. This is, after all, S.D.N.Y., not some hick court from a flyover state where no one has a passport and no-one could find Malaysia in an atlas. There are lots of factors here going one way or the other: those who seek the benefits of US trade (and particularly its courts) must take its burdens; the US itself benefits from such trade and wants to encourage it in general if not in the case of this particular business; the existence of foreign restrictions on the use of personal data is not exactly a secret; there was already a default judgment against the original defendant; the protection of IP rights is to some extent a matter of national interest; the position under Malaysian law does not seem to be been argued with great thoroughness (though it would be quite fun to apply the same critical analysis to the logic of the Opinion as its author gave to the Malaysian affidavit); the party against whom discovery was sought was not in fact a party to the original dispute. All these factors muddy the waters, and I propose to ignore them all and focus instead on the words “the important interests of the United States” referred to in the Restatement (Third) of Foreign Relations Law of the United States which are set out in the Opinion.

To an outsider, the conclusion that “the interest of the United States outweighs that of Malaysia under the circumstances” implies an alignment between the interests of a private company (the Plaintiff) and the national interest. It reminds me of that splendid time in British imperial history when Lord Palmerston sent the British fleet to blockade Piraeus in 1848 because the Greek government had failed to pay compensation to Don Pacifico, a merchant of Portuguese Jewish birth, who had had the good fortune to have been born in Gibraltar. There were those who doubted that this was a proper use of British power and authority. Palmerston’s magnificent speech, with its evident disdain for any country but his own, might serve as a model for those drafting the Opinions of US courts in this context, as you can see from its famous closing lines:

whether, as the Roman, in days of old, held himself free from indignity, when he could say Civis Romanus sum; so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England, will protect him against injustice and wrong.

‘Just send in the Navy and teach these foreign chappies to show some respect’ was the attitude which gave “gunboat diplomacy” its name, and the Don Pacifico incident was its defining moment.

The US test, recited in the opinion, is “the extent to which non-compliance with the request would undermine important interests of the United States, or compliance with the request would undermine the important interests of the state where the information is located”.  My hesitation in treading into matters of US jurisprudence does not prevent me from wondering whether the reference to “important interests of the United States” applies narrowly to the facts of the case under consideration, or more widely (as the Opinion itself suggests) to the protection of US intellectual property interests, or whether it refers to the broadest interests of the US vis-à-vis the rest of the world in respect of data collections. I agree with Tom O’Connor that this Opinion, and those which it follows, can only encourage Germany, Italy or France to (as Tom puts it) “make it even harder for US courts to get their documents than they do now”. How will that serve US interests? What will you do? Perhaps you will simply sanction every party who is unable to produce documents. Or maybe you should, Palmerston-like, send round a gun-boat every time a foreign country presumes to raise its own laws in conflict with yours.