Should Lawyers Play Nice in E-Discovery?

 Brad Jenkins over at Trial Solutions pointed out a great LTN article today - E-Discovery: A Litigator's Perspective by David B. Mankuta. A great read about some very high level things that can be done to avoid some very basic pitfalls.  The upshot is that eDiscovery is expensive and one of the causes is a lack of cooperation among lawyers.  Mankuta states:

"Over the past 10 months, our client invested several hundred thousand dollars in the e-discovery process made more complicated by a lack of cooperation by the defendants."

Click on the "lack of cooperation" link and you find another good article, and the title of this post - Should Lawyers Play Nice in E-Discovery? by Jason Cruse. This one from February 2009. That article outlined a panel discussion by many thought leaders of the legal profession, including Richard Braman, founder of the Sedona Conference, Arthur Miller, a respected scholar at Harvard Law, Supreme Court Justice Stephen Breyer and various federal judges, executives and lawyers.  The panel discussion was heated at times.  The academics like Braman and Miller pointed out that lawyers are taught in law school cooperation and collaboration.  Practicing lawyers on the panel voiced loudly that is not reality and lawyers as advocates use all the tools at their disposal, including not cooperating in discovery.  Braman was shocked later stating:

"That experience stuck with me, and I decided it was time to put a stake in the ground and say that unless we find a way to solve the dispute over discovery, the legal system will in fact break."

That revaluation lead to the Sedona conference Cooperation Proclamation.  Have you read it?  There are numerous articles since the proclamation suggesting that not much has changed.  The reasons more collaboration does not take place is nothing more than strategy more often than not.  Those that "blame the lawyers" and think that discovery disputes will not always be a part of litigation strategy are simply naive and have not spent time in the trenches.  As an advocate, a lawyer has a duty to use whatever tools they have within ethical and legal bounds to represent their client.  Most follow the rules and if not clear, they interpute them.  That's their job, right?  This is not a new issue brought on by ESI.  Just magnified today more than it has in the "paper days".  Almost three decades ago when I was a court coordinator in Harris County, Texas, the young judge I was working for at the time had a brilliant idea.  He grew so weary of discovery disputes that one day he came to me and said, and I am paraphrasing of course:

"I want you to start screening the discovery docket.  Don't make calls when motions are filed", he said.  "Rather, wait until they come down for the hearing.  When they arrive, you ask them one question.  Have you visited face to face with each other and tried to work out the dispute?   If the answer is no, send them into the hallway and ask them to talk.  Tell them I am in a very foul mood today and that if they can't work out the problem, you can bet one of them won't be happy with my decision." 

 There were local rules in place at the time, mind you, that required certification that the parties had attempted to work out the dispute. The certification stated almost universally that they had tried and that no call was returned, or they for whatever reason could not reach the opposition.  At the time we had a docket of over 3,000 cases and 1.5 days of each week dedicated to discovery disputes.  I asked the question each Monday and most of the time the answer was no.  Into the hallway they went, and most of the time they return with an agreement and the motion was withdrawn.  Of course the word got out and within 3 months our discovery motions docket was reduced to just 1/2 day each week.  That judge did somewhat of the same thing for trials - sent the parties to mediation.  By the time the judge left the bench 4 years later, our docket was down to just 800 cases. 
Sure, there are similar rules in place now in many jurisdictions, but we need more than rules requiring cooperation.  Before things change, there must be very specific standards with teeth that lawyers understand.  In the paper days, form of production for example was simple - paper is paper and a copy is a copy.  Today, the game is more complex with ESI.  It is difficult to play a game where the rules are not clear.  The rules on eDiscovery are either non-existent, or simply absent and case law is all over the map.  Until there are very specific rules, careful planning with experienced experts must rule the day.  What is your approach to ESI in litigation?  Do you develop a plan with the opposition that includes significant detail written to avoid disputes?

There are NO "Industry Standards" in the eDiscovery Space!!!

Yes, that is right - there are no standards. I catch myself saying "industry standard" this or "industry standard" that, when in fact not only are there no eDiscovery standards, there is no eDiscovery standard setting body. There are standards from other industries that we barrow and adopt voluntarily as quasi standards. The Reference Data Set (RDS), for example, is a list of the 28 million or so file signatures in the The National Software Reference Library (NSRL), which is maintained by The National Institute of Standards and Technology (NIST). The NSRL is designed to collect software from various sources and incorporate file profiles computed from the NIST approved cryptographic hash algorithm within the RDS of information and maintained by NIST. The RDS is used by law enforcement, government, and industry organizations to exclude files on a computer by matching file profiles in the RDS. We know this as the NIST list and in this industry and use the NIST list to remove "system" and related files that have no value in our world.

But wait!

There are multiple hash algorithms, so which one do we use? As many in this space know, most eDiscovery applications use the MD5 hash algorithm. There are also other algorithms because in 1996, cryptographers began to find flaws in the MD5 computation, and began recommending the SHA-1 designated by the NSA. Flaws found in MD5 hash algorithm reached the point that in 2007 the U. S. Department of Homeland Security said MD5 "should be considered cryptographically broken and unsuitable for further use". Yet here are still using a broken "standard". Flaws have also been found in SH-1 and SH-2, by the way, but that is an article for another day.
So, what about the Sedona Conference, EDRM and other such organizations that promote "standards"? Those organizations provide guidance and are not setting "industry standards". The ONLY organization in the legal space that can dictate standards that everyone must follow are the US Supreme Court and the various State Supreme courts. Those governmental entities set standards each year through amendments to the rules of evidence and rules of procedure. So far, there has been little to no guidance from either level of government directed specifically at eDiscovery standards. So what’s the point? We will not have standards such as a standard form of production, as an example, until the courts write standards into the rules. That won’t happen until the rules making leadership of the ABA and various State Bars get involved and make it happen. Please, get involved!!! We need standards. Until then, let's drop use of the term "industry standard" and instead refer to "best practices", shall we?

Lawyers need help too!

Apparently when you turn 50, you are considered an “old goat” and you begin to reminisce about your life and become nostalgic. Well, it happened to me this year – the turning 50 part. Well, ok, maybe a bit of the reminiscing and nostalgia too. There is one other thing that happens as well. Because you’re considered an “old goat”, um, experienced, you can get away being direct. In your 30’s and 40’s direct is mistaken as arrogant. Well, I’m about to be direct to my lawyer friends. While I am not a lawyer, I’ve supported lawyers literally my entire adult life, so I’ve earned the right to be direct about the following.

Stop it!

Stop going to meet and confers with just a legal pad, a redwell of briefs, a pen and no plan. Those things you take are important, but you’re forgetting the plan. Stop entering into discovery agreements without considering ESI and getting the proper help and advice. Stop tiffing and printing everything because you don’t want to learn technology (or let your staff use it) - that approach is expensive. Don’t argue with your staff on that point, that war is lost. You don’t have to know technology. As one great litigator said to me recently:

"I don’t know the first thing about technology. I am a litigator and a good one (he is). I have folks on my staff to push to me what I need. I understand that they need technology. I understand there are associated costs. My staff will locate the technology expert appropriate for this matter."

Stop with the discovery disputes over ESI - you’re upsetting the courts. They are unhappy and it’s making my job harder. Yes, maybe I make more money when you fight and mess things up, but I don’t enjoy it as much as I do when I help you plan well and help you win. You’ve seen the opinions written by judges upset over disputes about ESI mishaps, right? If you haven’t, comment here and I’ll hook you up with Roland Bernier or some other fellow lawyer who reads them every day. Stop throwing search terms against the wall to see what sticks with no testing or plan what-so-ever. You’re messing it up for those who have a plan. Stop making the discovery process way harder than it needs to be. Stop thinking that the more you produce, the more likely it is the opposition won’t find the smoking gun. Technology is going to find it. More importantly, stop making discovery more expensive than it needs to be. Yes, those of us on the “service provider” side must take some cost responsibility, and most of us do take that responsibility very seriously, but stop saying it’s our entire fault. A good friend recently said:

“You eDiscovery folks really built an industry out of nothing."

To which I responded:

“Yes sir seems so, but didn’t lawyers do so as well? Sure, it was centuries ago, but at some point in the past there were no lawyers. I just happen to have been present when computers hit your desk and had the good sense to see what was coming and learn all that I could.”

The point he really was trying to make is that his clients now have to pay for some new service. You do need another expert now. But, you need some expert on every case, right? Those guys/girls don’t work for free. Lawyers take pride in the education and many years of experience.

Please, for all that is holy, contact your litigation support department early and often. If you don’t have one, contact someone in the industry that knows what they are doing and can help you. Many lawyers take pride in their technical prowess and I applaud those that are savvy. However, unless it is your sole function to keep up with eDiscovery, don’t try it alone. Do what you do best – lawyer. Don’t wait until you are in the throes of battle either. Don’t think ESI does not apply to your case – it is present in virtually every case. If you don’t think so, chances are real good you’ve missed something. Yes, those technical professionals are likely going to cost something and you or your clients are going to have to pay for their services. If you don’t, you will eventually regret your choice. Sure, maybe not on this case. Maybe not on the next, but eventually you’re going to find yourself (or your client) spending way more than you might have spent had you engaged the right help at the right time. Be careful out there. Discovery can be a jungle, or a beach - your choice and you’re in control.