e-Discovery: Finding the forest beyond the trees

Effective e-discovery requires specialized education and experience. I have mentioned in earlier columns that e-discovery problems can be created by the traditional elitist law firm approach of delegating discovery assignments to younger inexperienced lawyers on the basis that the task doesn't require real lawyering. I have continually encouraged the need for specialized education and experience in this new arena if lawyers are to properly comply with their obligations as officers of the court, fully represent their clients, and protect themselves and those they represent from imposition of heavy sanctions (financial and otherwise).

E-discovery highlights a crisis of competence faced by the legal profession. Recently, Karl A. Schieneman, well-known e-discovery entrepreneur, interviewed U.S. District Judge Shira Scheindlin (the pre-eminent federal jurist who is paving the way in the field of e-discovery) and Ralph Losey (one of the leading legal educators and lawyers in this area of law). The resulting message is a forceful statement that e-discovery is not "just a passing fad" that "can be ignored." Judge Scheindlin was clear: "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery." Now, Losey cautions, it is an area that urgently demands an improvement in e-discovery education and attention to "the crisis of competence now faced by the legal profession." The proof of these assertions can be found in "the steady stream of new judicial opinions demonstrating attorney negligence and refusal to cooperate on simple technical matters, all to the detriment of clients." Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) seals the deal.

Sanctions follow foolish mistakes by counsel exacerbated by unnecessary struggles over metadata. In Bray, a large major law firm and two of its lawyers were personally sanctioned for a number of foolish mistakes exacerbated by an unnecessary struggle. The struggle involved electronically stored information (ESI) comprised of metadata (information not readily subject to scrutiny on the screen). The court accused plaintiff's lawyers of removing the metadata from native files (which contained the originals) that had been properly collected by their client. Refusing to produce ESI in the native format as requested, these lawyers delivered a massive number of TIFF (tagged image file format) files that proved to be unsearchable. This forced the court to conduct two days of evidentiary hearings to determine what the lawyers had agreed to produce at the meet-and-confer-conference.

E-discovery crisis of competence exists even in the best law firms. The court issued a substantial opinion instructing on the consequences awaiting lawyers who, according to Losey, "play discovery the old-fashioned hardball way and flaunt cooperation and technical understanding." Losey goes on to underscore that the case "shows the crisis of competence, even in the best law firms [and] should be a wakeup call to upper management in law firms everywhere to get their litigators under control and educated about e-discovery, or face the imposition of monetary sanctions (and embarrassment) against [their] firm."

The most important aspects of e-discovery are appropriate search and better use of technology. Judge Scheindlin opines that an appropriate search and better use of technology is the most important topic in e-discovery today. Losey explains to law students that lawyers seem to have lost track of the fundamental proportionality factors set forth in Federal Rule of Civil Procedure 26(b)(2)(C), which is directed to "achieving a balance between the value of a case, the importance of the case, and what the cost may be in the different kinds of information available." He is quick to note that "discovery is not a field where there should be unnecessary contests. It should be a cooperative search for the truth" that puts "the facts on the table" so the ultimate adversarial argument will only be about "what the facts mean...not about technical things like metadata, do you need it or not."

Self-help cannot be used irrespective of the reason. Judge Scheindlin cautions that one cannot use self-help, even when it appears that the e-discovery process is being used to extort a high settlement. She says, "You either go for protection by coming to court or you comply. But you can't take the middle ground and just ignore it, put your head in the sand, do it half way and then say, 'Well the reason I didn't do better is it was too expensive.' That's what you can't do and that's where I think a lot of lawyers make a mistake." Losey's solution is that the "only way out of the proportionality and discovery extortion dilemma is for Goliath to reach agreement with David, or failing that, the parties asking the court for relief. Otherwise, you may lose your head and fall victim to extortion-high settlements."

So what it boils down to even at the e-discovery stage of litigation is the respective legitimate interests and underlying needs of the parties. Mediation anyone?