e-discovery 2.0

Without getting in Dutch with the key Sedona Conference principle that “what happens at Sedona, stays at Sedona” I thought I’d nevertheless write a post that focuses on the core topic at this year’s annual meeting, namely the case for cooperation in e-discovery.

According to the “Cooperation Proclamation” e-discovery is facing an unprecedented crisis:

“The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (”ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes - in some cases precluding adjudication on the merits altogether - when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes. With this Proclamation, The Sedona Conference launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.”

These sentiments about the “broken” nature of the discovery process echo in many ways the draft findings from the Interim Report & 2008 Litigation Survey from the Fellows of the American College of Trial Lawyers which stated:

“The joint study grew out of a concern that discovery is increasingly expensive and that the expense and burden of discovery are having substantial adverse effects on the civil justice system. There is a serious concern that the costs and burdens of discovery are driving litigation away from the court system and forcing settlements based on the costs, as opposed to the merits, of cases.”

In both instances, the core notion is that “we’ve met the enemy and the enemy is us” because it’s the participants in the process have collectively perverted the discovery process to the point it’s at today.

Sedona’s focus on this front has received at least some traction from the bench, as echoed in Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008).  Mancia, written by leading e-discovery jurist Judge Grimm, was a fairly pedestrian employment litigation case where the parties had come to loggerheads over the e-discovery process.  Judge Grimm held that “[c]ourts repeatedly have noted the need for attorneys to work cooperatively to conduct discovery, and sanctioned lawyers and parties for failing to do so” citing both the Sedona Cooperation Proclamation and the Survey.

Judge Grimm also observed that the these recent lamentations about the costs of civil litigation aren’t terribly dissimilar to those voiced eighteen years ago when the Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471 et seq., was passed:

“Perhaps the greatest driving force in litigation today is discovery. Discovery abuse is a principal cause of high litigation transaction costs. Indeed, in far too many cases, economics-and not the merits-govern discovery decisions. Litigants of moderate means are often deterred through discovery from vindicating claims or defenses, and the litigation process all too often becomes a war of attrition for all parties.”

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.

E-Discovery search has become a hot topic of late (in blogs and in the news), and I think it’s pretty clear that the unwashed (attorney) masses still don’t really grok the importance of using a defensible search protocol.  Neither do they seem to understand the enhanced scrutiny that’s being applied by the judiciary.

Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008) is another in what will assuredly be a long string of cases that demonstrate how easy it is for litigators to get wrapped around the axel of e-discovery search.  In Kipperman, the defendant (Onex) presented several motions to the court, including attempts to obtain relief from the need to produce email identified after searching several backup tapes.

During a previous hearing the court ordered Onex to search all the mailboxes on two tapes, as well as on an additional tape selected by Plaintiff. The court determined that despite Onex’s objections and representations, the backup tapes were “producing meaningful discoverable information.”  The court was nevertheless sympathetic to Onex’s burden and therefore weighed in with some guidance:

“The court did suggest, … , that Plaintiff be more artful with its search terms and that Plaintiff utilize a list of the people, provided by Defendants, to review whether all mailboxes needed to be searched.”

The court also gave Onex the chance to narrow the search terms.  Unfortunately, they didn’t seize the opportunity to provide a narrower list or a refinement of their search terms.  “As such, they agreed to search and restore all the mailboxes with the search terms provided by Plaintiff.”

Not surprisingly, Onex then sought relief from having to review and produce all of the results from the search because the “broad search terms resulted in thousands and thousands of irrelevant hits.”  For example, the search terms included the word “republic” which used to elicit emails regarding Republic Builders Products, one of the companies involved in this matter.

“Defendants claim that the search captured thousands of irrelevant pages due to one occurrence of the word ‘republic’ often related to Onex business interests having nothing to do with Magnatrax in the ‘Republic of France,’ ‘Republic of Ireland,’ and ‘Czech Republic’.”

Again the court reaffirmed their sympathy with Onex’s burden and yet denied the requested relief, in large part because Onex was warned about not being more “artful”:

“[T]he court is not unsympathetic to the massive amount of discovery involved in this matter, the considerable burden of working with it, and the overproduction that often comes with e-mail production. Therefore, the court gave Defendants numerous tools by which to reduce the burden of e-mail discovery, including an opportunity to limit Plaintiff’s search terms and an opportunity to provide a list by which the number of peoples and the number of boxes being searched could be reduced. Defendants did not take advantage of these opportunities. Defendants must now lie in the bed that they have made. Thus, Defendants’ objections on the basis of relevancy and volume are DENIED.” (emphasis added).

Needless to say, Kipperman is probably not all that atypical.  Attorneys everywhere have historically used blunt e-discovery search instruments and haven’t often run afoul of the judiciary.  Now, post Victor Stanley, et al, the playing field has changed dramatically.  It’s important to leverage best practices (from Sedona and others), craft a defensible search strategy, sample the results and “show your work.”  Missteps along the way, especially ones that the court has tried to help the parties avoid won’t be met with much tolerance

Ralph Losey, never one to mince words, recently analyzed a recent litigation survey from the elite Fellows of the American College of Trial Lawyers. The survey highlights the fact that one of the main problems facing the U.S. legal system today is (surprise!) e-discovery. Also (not) a surprise is that the study “places the blame squarely on poor rules, bad law, and judges”, while overlooking the role that lawyers play in the problem.

In his analysis, Ralph makes a number of insightful observations that should help lawyers move from being e-discovery troublemakers to being part of the solution. However, one of his key critiques is targeted not at lawyers but rather at the vendor community: “[E-discovery] is too expensive because lawyers and judges do not know what they are doing, and do not know how to properly cull and review email, and because clients are disorganized pack-rats. Many of the e-discovery vendors are also misinformed, but often they do know better; they just have no pecuniary interest in aggressive culling. Some may even seek to line their own pockets in inflated discoveries.”

As Ralph bluntly points out, pecuniary interests (translation: money) plays a big role here, but so does risk reduction. Imagine you’re given the opportunity to process a 2 terabyte case all the way through to review. With the “funnel” of e-discovery costs placing the highest dollar per gigabyte value on the end of the process (i.e. review), what’s your incentive to cull aggressively at the beginning? Not much from a revenue perspective, certainly, but also not much from a risk perspective: particularly when you have sanctions and lawsuits on your mind and are thinking about the potential liability that you incur by excluding potentially relevant documents by using too broad a brush (or pair of garden clippers) in your pruning.

How do we move forward? As document volumes continue to grow, it’s clear that aggressive culling (with a few caveats which we’ll get to in a minute) is a critical tool for managing costs and improving case outcomes (let’s go out on a limb and define “improving” as producing fairer and more equitable rulings). However, in order to adopt more aggressive culling as a standard part of the electronic discovery process, the community has to come to terms with three things:

• The Myth of Perfection: There may be perfect abs, but there is no perfect e-discovery. Organizations like the E-Discovery Institute are doing fantastic work to measure and improve the accuracy of electronic discovery efforts, but in the end it’s tough to make the argument that having 100 contract attorneys manually reviewing 10 million documents will necessarily produce a better overall e-discovery outcome than  10 specialized attorneys reviewing 200,000 documents that were aggressively (but thoughtfully) culled from initial 10 million document set. There simply is no black and white set of rules that will lead to a perfect process.
• The Benefit of Cost Control: Given that, it is in the best interest of everyone involved (yes, even vendors) to choose the most cost-effective process that provides a high likelihood of producing the information relevant to the case.  This means “saving your bullets” by not spending all of your e-discovery dollars up front in a case pursing the perfection myth, but instead approaching discovery in an incremental fashion which can adapt to changing facts and circumstances as the matter unfolds. How, you may ask, do vendors benefit? They can become more strategic e-discovery advisors by working with counsel over the full lifecycle of a case, providing higher-value (and, by the way, more interesting and intellectually challenging) consulting services to help incrementally adjust and adapt the course of e-discovery. As Ralph puts it: “…Trial lawyers should accept that specialists in the field of e-discovery are a necessary evil. If an e-discovery specialist knows the field, they can save you money and take you out of the e-discovery morass faster and more reliably than a dozen new rules. The world today is too complex for one man or woman to do it all.”
• The Value of Defensibility: Many of you likely winced at the term “high likelihood” in the previous point. “Sacrilege!” you cried. “I demand certainty!” First, go back and re-read the first point about the Myth of Perfection. Then, consider that a better way forward may be an approach to e-discovery that involves more aggressive culling early in the process to focus on the most important documents first, more iterations to adapt to changing facts and circumstances, and, all along the way, a complete audit trail that provides defensibility in the event that any aspect of the process is ever questioned. Such defensibility would include specific documentation about the culling decisions that were made, down to the keyword and “sub-keyword” (i.e. wildcard expansion) level, so all the cards are on the table for everyone to see.  The value of defensibility when performing aggressive culling is enormous, in that it adds an additional measure of safety and trust to the process, minimizing the amount of doubt and second-guessing that so often plagues e-discovery negotiations.

By coming to terms with the fundamental imperfections of the e-discovery process and embracing the promise of lower costs and the agility and responsiveness that can be gained with a more iterative approach, everyone stands to gain from the safe and controlled adoption of aggressive culling – yes, even the vendors (at least the smart ones) and their ever-present pecuniary interests.