A Gross Inability to Craft Electronic Discovery Searches
by Dean Gonsowski on April 9th, 2009
The bashing of our judicial system seems to have reached a fevered pitch. Groups like the American College of Trial Lawyers (”ACTL”) have proclaimed in a recent report that while the “civil justice system is not broken, it is in serious need of repair.” The blame game seems to have judges and attorneys alike pointing fingers. The Fellows of the ACTL (perhaps not surprisingly) seems to pin some of the blame on the judiciary:
“Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively.”
Groups like the Sedona Conference chalk up many of the ills to the failure to cooperate, so much so that they’ve orchestrated a cooperation proclamation – which has picked up enough support by the bench to have garnered several cites in the case law (see e.g., Mancia).
The bench for its part seems to put some of the onus on litigators and their reticence to get with the times. William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009) is the latest example of such a proclamation. In this construction defect case, Judge Peck (a Sedona devotee) issues what he hopes will be a “wake-up” call to the bar about the need for “careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information (‘ESI’).” In Gross, the court had to mediate an e-discovery dispute where the requesting party propounded a blatantly over-inclusive search request crafted by the requesting parties. Unfortunately, the responding entity was a non-party and they simply dig their heads in the sand. In order to facilitate a resolution this left the Court in the “uncomfortable position” of having to craft a “keyword search methodology for the parties, without adequate information from the parties (and Hill).”
Judge Peck’s exasperation with these antics was palpable. Summing up the problem by citing Judge Grimm and Victor Stanley he stated: “This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.” He further noted: “[w]hile this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.”
After noting both Sedona and Judge Facciola (of O’Keefe and Equity Analytics fame) Peck’s opinion reached a crescendo:
“Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of ‘false positives.’ It is time that the Bar-even those lawyers who did not come of age in the computer era-understand this.”
While it’s easy to see who Peck blames in this brouhaha, it takes (at least) two to tango. Meaning that litigants on both sides of the “v” must move beyond the typical “seat of the pants” electronic discovery wrangling. And, judges need to be savvy enough to spot the issues to help/force the parties into such an enlightened/cooperative state. Nothing short will get the job done.
Loading ...
April 13th, 2009 at 8:00 pm
I liked this piece – at least where you came out. Indeed, the actions of lawyers are largely responsible for the litigation system’s failures. The profession’s proper call for zealous advocacy has too often been distorted into a scorched earth, hide-the-ball, anything-to-win mindset. This results in the inability of zealuosness to operate in its proper sphere, because the advocates do not have the full facts to analyze and incorporate into their arguments. In e-discovery, the problem isn’t so much hiding the ball (although I’ve been wondering just how far clever lawyers may indeed go), but an environment in which one can simply make prohibitively expensive for your adversary to litigate. And I take your last paragraph as an appropriate condemnation of that state of affairs.
The problem I have with your piece is the implicit criticism in your choice of terms describing efforts to stem that tide of unprofessional behavior. Describing the Sedona Conference as a group which “orchestrated a cooperation proclamation,” and Judge Peck as a “Sedona Conference devotee” fails to advance the debate, other than smearing a group of professionals by vague innuendo. I have attended the Sedona Conference meetings for several years now and while I have a few questions about how assignments are handed out, they are the same questions that apply to almost any organization of any size from your typical junior high school student council through almost any corporation, bar association or Congress.
But sliming the organization that makes a proposal or the individuals that endorse it does nothing to advance the discussion. It’s simply an ad hominem argument that opens you up to questions about your motivations. If you have a problem with the proclamation, say so. Debate it. Deal with it. If you have a problem with how the proclamation came about, have the courage to say what the problem is. If you have another proposal to put on the table, do it.
Let’s do what we can to raise the level of discussion, rather than tear it, and ourselves, down.
Thanks for letting me vent.
April 13th, 2009 at 8:02 pm
Thanks for the insightful commentary. My goal is always to stimulate discussion.
On to your points… If I seemed critical of the Sedona’s Conferences efforts on the collaboration front, I apologize for the misperception. I’ve been a Sedona member for 5 years and have in fact written other pieces in support of their numerous efforts, their cutting edge work on E-Discovery Search comes to mind. So, to be crystal clear, my goal in using “orchestrated” and “devotee” was certainly not to “smear” or ”slime” the group or its efforts.
As to my thoughts on the Cooperation Proclamation generally, I am already on record with my opinion: http://www.clearwellsystems.com/e-discovery-blog/2008/11/17/the-sedona-cooperation-proclamation-and-the-case-for-collaboration/... “Given the fundamentally adversarial nature of litigation, the Sedona initiative is either dramatically ambitious or simply tilting at windmills. While generally a skeptic by nature, I think that the bench’s early participation and downstream behavior modification is the linchpin to reforming the litigating masses. Given the long term ’sales’ cycle involved here, I doubt if we’ll know whether this effort will gain real traction for at least several years.”
What I was trying to note in the post is that there appears to be a consensus rapidly gaining speed that the litigation/e-discovery process is broken, while trying to illustrate how differing constituents have conflicting viewpoints on who’s to blame and how to fix the alleged problem. It was less about stating my belief. But, since you asked,… I think (as a former litigator) that discovery abuses have been going on for a long time and the problems with e-discovery more recently have to do with an unlevel playing field amongst litigants and the bench. Meaning that the newness of the ESI challenges have allowed folks to abuse e-discovery if they’ve been so inclined, thereby taking advantage (ala game theory) of naïve or under-informed participants in the process.
Best,
-Dean