May 6, 2010

IQPC Judges Panel on eDiscovery

by Cary J. Calderone, Esquire

Readers of this blog know that I am always happy when we have the opportunity to learn about DRED issues directly from judges.  I had the privilege of attending the Judges Panel on eDiscovery at the IQPC eDiscovery Conference in San Francisco.  This was a very worthwhile session and attendees learned some great insights about the "Real World" of eDiscovery that occurs in actual court cases.  And, by actual court cases, I mean the majority of cases you will probably never read about because they do not involve extreme examples of eDiscovery misconduct and multi-million dollar sanctions.  Hopefully, these are the cases that your legal matter will most closely resemble.  Moderated by Craig Carpenter, V.P. and General Counsel, Recommind, Inc., U.S. Magistrate Judge Robert B. Collings, District of Massachusetts, and U.S. Magistrate Judge Elizabeth D. Laporte, Northern District of California, provided updates to the law.  I am happy to report that in the 3-plus years since I have been working almost exclusively with eDiscovery issues, there has been evolution and progress, and there are now better guidelines to help keep your business or department DRED-ready.

Some of Judge Collings recommendations included:

  • Reading the article by Judge Facciola-Federal Courts Law Review on privilege review   
  • Urging counsel get a court order with respect to a Section 502 waiver
  • Whittle eDiscovery down the the issues you have actually have in dispute
  • As an Observer to the Sedona Judicial Working Group-Courts are looking for more cooperation between counsel and less adversarial posturing during the Meet and Confer process
  • Parties need to be more transparent about what, how, and where their data is located
  • Don't take expensive 30(b)6 depositions unless necessary
  • Bring your IT experts to the Meet and Confers
  • A reasonable proposal and approach will get the Judge's support
  • Settling cases for purely economic reasons has always occurred -eDiscovery is exacerbating this
Judge Laporte also provided some important insights:

  • There is a wide range of parties and sophistication-She has given attorneys eDiscovery homework
  • Lawyers who typically do not deal with eDiscovery now have to learn it
  • Client is responsible for getting it right-Courts look to see who is really engaged in the wrong-doing (citing Qualcomm case where the court found no bad faith on the part of outside counsel)
  • Standard is what is reasonable at the time
  • If you agree with opposing counsel as to procedures, and reduce it to writing, you should be safe from sanctions
  • Get a section 502 claw-back provision embodied in a court order
  • Sanction cases-Repeated misrepresentations and a failure to be careful cause most of the sanctions, regardless of the provision the Judge may cite as authority for imposing sanctions.
The best practice comments were interrupted when Wayne C. Matus,  Partner, Pillsbury Law Firm, asked a question from the audience that caused a noticeable "pause for reflection" by the Judges before they could answer.  He asked if there was ever a situation where the standard for Legal Holds was going to be always on hold?  He gave the hypothetical of a construction company that knows there will always be litigation with a certain size development project, so from the beginning, they can "reasonably anticipate litigation."  After giving it some thought the Judges, while not answering the hypothetical directly, did point to similar industries, like pharmaceuticals, and technology development, where future litigation is always a consideration.  Since I have advised clients in this area, I commented to Wayne afterward that it was almost an "unanswerable question" and jokingly asked if he had ever been banned from participating in Q&A with Judges Panels because he asked such tough questions?  The truth is, tough questions like that are the best part of these panel discussions.

Judge Collings clarified the role of inside versus outside counsel: "What is subject to legal review is the role of outside counsel."  He recognized that making money for the corporation and keeping money for the corporation (a penny saved is a penny earned) is a major goal of inside counsel, but noted they will run into problems if Legal Hold notices are not going to the correct custodians or they are not being issued on time.

Judge Laporte referred to the Pension Committee case to remind us that Circuits have different standards for issuing Legal Holds.  She also commented on Judge Shira Scheindlin's recent dicta about always issuing a written hold.  Judge Laporte observed that "when you have a small family or small business litigant, it could be a very different situation and standard.  On the other hand, why wouldn't you issue a Legal Hold?"

Patrick Oot, a well-known eDiscovery expert and Sedona Conference participant made an interesting point from the audience about wage and hour disputes and when you may not want to issue Legal Holds in the standard fashion but might choose to separate the Legal Hold policy from the class certification.

Great point from the Judges on reviewing your own Legal Hold procedures:  "Imagine if you have to explain what you are doing to the Judge later."  For example, even an email is now a written record of what you did to issue a Legal Hold and it creates a trail.  Discussing the Quan case and text messaging, there were conflicting views on what the company policy was.  The Judges recommended audits regarding private versus company usage.  Best practice, "Have a clear cut policy" and people need to know it!

I had one what I like to call "cringe moment" when Judge Collings mentioned that lawyers are going to have to learn about technology to adequately represent their clients in court.  He mentioned the long tradition and ability of lawyers to be able to learn a great deal about a particular subject matter in order to prepare for trial.  They can study and learn an amazing amount of information in order to explain the subject to a judge and jury.  While judges are never "wrong," they are only "misinterpreted," my worry is that too many techno-deficient lawyers will believe they can learn the technology and its language in a few weeks.  They can not.  To them, in addition to offering my expert services (shameless plug), I suggest a more appropriate analogy would be like trying to learn to speak French in a few weeks.  In other words, learn what you can, but bring your expert interpreter along.  Merci beau coup...


Brad said...

Cary, great questions being raised by the audience, and sage advice from the bench -- take your obligations to preserve data seriously, execute a well-crafted preservation process, and document your decisions and actions even for the small cases. I thought of the recent Merck Eprova v Gnosis case where gross negligence emerged from a series of discovery missteps.

About Cary said...

Brad, thanks for your comments and I agree that the Gnosis case is a great example of the accumulation effect when small mistakes add up to large sanctions. Thought my readers wouldn't mind a link to your blog to read more about the case.