Part 2 of 2
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What Can Practitioners Do to Handle E-Discovery Matters Effectively in Court?
Take a cooperative approach
From the point of view of the bench and ESI practitioners alike there is a need to cooperatively approach discovery. There are rules on the books currently to mitigate the burden of e-discovery. From Judge Grimm’s perspective the Claw back is a great tool when used properly. It’s a cost effective way to handle discovery permitted by 26(v)(b)5 that allows the production of all data without searching by a party and without violating attorney-client privilege. These tools (while helpful) are not always a viable or logical solution.
Be informed, reasonable and prepared to educate the Judge
Judge Hodges noted the dirty little secret is that motions to compel are the bane of our [Judges] existence. She “gets the willies” when she sees ESI and “we are the least fit to make the decisions on the details of key words, custodians, systems”. Practitioners who have spent weeks, months and even years analyzing cases know the key factors. The Discovery request should be the result of a reasonable discussion. Judge Peck noted, “If you do not think that the request is appropriate, provide an alternative solution and be prepared to produce what you believe is reasonable”.
Look to your courts recommendations
Judge Grimm’s District court adopted and posted a suggested protocol for discovery of ESI and many courts have a standing order once the 2006 FRCP rules were going to adopt the ESI rules. They have a liaison committee to work with the standing committee on rules and forms to get input from practicing attorneys for real-time insight. None of this may apply or some of it may apply, but as of today 97.6% of attorneys in (his) court are completely oblivious it exists. It is absolutely correct and totally useless. There is also a pilot project in the 7th circuit, and an 8 factor requirement in Losey’s District when it comes to meet and confer and e-discovery matters. In the Judge’s opinion, we are starting to see more consensus on how to approach these things.
Have a truly cooperative and substantive 26(f) conference
Peck commented that “too many are more like drive bys”. A good rule 26(f) provides the first opportunities to get a handle on e-discovery, to be open with your adversary about what you can and can’t do, and work it out at beginning of discovery. This should be an iterative process, with parties continually conferring as the case goes on. He went on to say that Judges are not sitting in chambers saying “I can’t wait for a sanction opportunity”. They are more work than they are worth.
Technology Leveraged Solutions
The gold standard of “eyes on every page” still exists, but there are tools that offer comparably accurate and affordable solutions when applied appropriately. These new technologies are changing the shape of e-discovery; there is a need to make sure that the attorneys and Judges understand what they are and how they work. There are many tools out there. About 80% do advanced keyword searching and others do predictive coding or clustering. Different tools allow your teams to accelerate the process and contain costs. The Judges cautioned that parties ought to be up front about what they are doing to avoid “garbage in garbage out”. A senior person needs to say what is being searched for and build a seed set, or just cluster data based on content. All requires the input of lawyers up front. Also, you need to have processes in place to document what was done and how. The panel concurred that, “without a process in place no tools will help you.” There is no easy button. It’s a process.
There’s a first for everything
Cannon voiced the ever-present concern when looking to alternative technologies and solutions in this space; there hasn’t been a case addressing intelligent review. Companies want a guarantee that they will not get socked with a sanction for using non-eyeball-on-every-page review. Judge Peck, a vocal advocate for embracing the changes in the e-discovery space, noted that while there is not an explicit case blessing computer assisted review, he has written an article for Law Technology News, “Search, Forward”, calling for lawyers to use or consider using predictive coding tools in appropriate cases. Someone, in the Judge’s eyes has to be first! You may not have a judicial opinion but you have an article and a transcript from this CLE… (the transcript will be published soon).
Judge Grimm noted that one thing he finds interesting in this debate is that most likely traditional reviews utilize keywords. He could not think of a single opinion blessing them. Victor Stanley, O’Keefe, Gross and virtually every other decision on keywords didn’t say it was the way to go. They were all very fact and situation specific. The Judges agreed that there really is nothing blessing keywords, but attorneys use them. Attorneys ought to consider the deficiencies in keywords before electing that route in lieu of a more proactive technology-forward solution.
Judge Peck advised attorneys to be up front about it, cooperate and be transparent. If you are concerned about a Judge’s reaction to using a particular alternative technology or protocol, get it discussed with opposing party up front. Get the issue in front of the court early, explain the method and why it is better suited for your matter than a traditional approach (reference trek etc).
Specialization in E-Discovery
Ralph Losey suggested that it will help if practitioners recognize that e-discovery is a specialty as much as Antitrust or Environmental law. Practitioners cannot just dabble in e-discovery and expect to be sufficiently up to speed. He recommended corporations select one national counsel and have them as your point of contact who knows your infrastructure end-to-end.
Losey went on to highlight that at the 26(f) conference sometimes it is too complicated to explain the nuance of a technology leveraged solution and a specialist can be an excellent resource. In his words, “Sometimes you need pure geeks to explain the complexities of a global operation. You need to collaborate with experts to provide the best solution for your client”. Judges, according to Peck, want the practitioners before them to work through the issues and educate them. It is often useful to bring in a knowledgeable resource to present (in-house ESI practitioners, vendors, consultants). For the smaller firms who can’t afford specialists? Train an internal resource.
At the end of the day, as Judge Facciola put it “…a lawyer is to be advised of the benefits and risks of technology”.
For a complete transcript of the event visit: www.novaoffice.net/assets/pdf/cle_transcript.pdf (to be published soon)
Share Your Thoughts…
Are you an e-discovery practitioner? Are you concerned that there is not an explicit case blessing computer-assisted review? Do you consider e-discovery a specialty practice area similar to Antitrust or Environmental law?