e-discovery 2.0

Recently, I attended the Sedona Conference’s annual meeting in Atlanta and, amongst other interesting topics, was the discussion of local rules developments and in particular the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”).  The Pilot Program was launched October 1, 2009 and seems to be a model for collaboration, since it was developed by eliciting input from a number of disparate groups:

“(a) continuing comments by business leaders and practicing attorneys, regarding the need for reform of the civil justice pretrial discovery process in the United States, (b) the release of the March 11, 2009 Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery (“Task Force”) and the Institute for the advancement of the American Legal System at the University of Denver (“IAALS”), and (c) The Sedona Conference® Cooperation Proclamation.”

The impetus of the Pilot Program was the “broken” nature of the electronic discovery process with the belief that better collaboration and cooperation would certain help remediate the situation.

“The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2). Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices. Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court. As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.”

What I really like about the Pilot Program is that it strives to be both prescriptive and practical, which should hopefully avoid the type of ambiguity often exploited by obstreperous counsel.  For example, there is an entire section on early case assessment (ECA) principles, which require discussion of:

• Production issues
• Identification of electronically stored information (ESI)
• The scope of preservation
• The meet & confer process

There’s also the relatively novel requirement that counsel designate an e-discovery “liaison” to work with the parties to coordinate and flesh out germane e-discovery issues.  Regardless of whether the e-discovery liaison is an attorney, a third party consultant, or an employee of the party, the e-discovery liaison(s) must:

“(a) be prepared to participate in e-discovery dispute resolution;

(b) be knowledgeable about the party’s e-discovery efforts;

(c) be, or have reasonable access to those who are, familiar with the party’s electronic systems and capabilities in order to explain those systems and answer relevant questions; and

(d) be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology.”

Needless to say, this requirement alone should make marked improvements in the e-discovery dialogue, which unfortunately seems like it’s occurring (literally) among participants who both speak different languages and don’t realize it.

Finally, what makes the Pilot Program unique is that its Principles will be subjected to testing during the phases of the Pilot Program, which is scheduled to end on May 1, 2010 (for the first phase).

This project certainly seems like it’s on the right track and pending feedback from the bench and bar, it could serve as a model for local jurisdiction everywhere.

Jeff Spicoli, after crashing a car in Fast Times at Ridgemont High, quipped:

“It’s okay. My dad is a TV repairman. He has the ultimate set of tools. I can fix it.”

Clearly, Spicoli’s tools (no matter how “ultimate”) weren’t going to get the car repaired. Never mind the fact that he was probably under the influence and shouldn’t have been operating anything more than a Barcalounger. His quote did get me thinking about a post I read recently that probably would have advised Spicoli against talking about how good his tools were. The post in question trumpeted the value proposition of early case assessments in E-Discovery (a viewpoint I wholly endorse). And yet, during the blog the author posited an interesting viewpoint that I think needs a bit of deconstruction:

“In legal, the less information your opponent has, the better off you are. … Using commodity based early case assessment tools may introduce legal risk your company may not want to manage. For example, if the opposing counsel has foreknowledge of the products you use, such as Autonomy/Aungate, Attenex or Clearwell Systems, they know your capability to identify concepts, custodians, etc. Using software to create legal leverage without sharing to the world how you do it, can improve your competitive advantage in the early phases of litigation.”

As a former practicing litigator, I’ll be the first to admit that I’ve seen my share of scorched earth discovery tactics. And, I’m not so much of a Pollyanna to think that a certain amount of this zero sum mentality doesn’t still exist. And yet, there’s an emerging trend (some might say a nascent best practice) to increase the amount of transparency and collaboration in the E-Discovery world.

I was at the Sedona Conference’s recent “Program on Getting Ahead of the eDiscovery Curve” where one of the hot topics was how the fledgling amendments to the FRCP were playing out in practice. One key discussion area centered around how the new Rules required a much more collaborative meet and confer process:

“Rule 26(f) is about cooperation and working together. By coming together early, defining what is important and what is not, and working with your adversary, not against them, means less risk, less cost and more certainty.” [Emphasis Added]. A Practitioner’s Guide to Rule 26(f) Meet & Confer: A Year After the Amendments. John Rosenthal, Howrey LLP and Moze Cowper, Amgen Inc.

Similarly, recent case law has also championed this collaborative approach:

“Identifying relevant records and working out technical methods for their production is a cooperative undertaking, not part of the adversarial give and take. … It is not appropriate to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence.” In re Seroquel Prods. Liab. Litig., 2007 WL 2412946 (M.D. Fla. Aug. 21, 2007)

As part of this proposed transparency and collaboration, the authors (above) point out that a number of topics should proactively be discussed during the meet and confer session(s) including preservation, date ranges, custodians, systems, categories or types of ESI, and the use of search terms. In my experience this level of discussion and transparency really does pay dividends. Anything that resembles a “hide the ball” approach will ultimately take up needless attorney cycles, and will in turn drive up the cost of resolving the matter.

Now, I will concede that a party shouldn’t take the transparency notion too far. For example, it’s probably not necessary to immediately discuss the brand(s) of tools that are working behind the scenes to deliver the promised results. And yet, disclosing the type of functionality that will be brought to bear on the E-Discovery process can help:

• Facilitate discussions about ESI “inaccessibility” – see FRCP 26(b)(2)(B)
• Dispel the frequent myth that one party has the type of uber tool that can instantly, cheaply and automatically grab every piece of relevant data from the most remote corners of an enterprise
• Set the stage for limitations in the E-Discovery process so that all parties (including the Court) can have their expectations firmly grounded in reality
• Eliminate “black box” technology concerns by showing the opposition how your tools work to process files, handle metadata, etc.

So, back to the Spicoli reference,… having a killer set of tools may help your enterprise (or client) achieve fast, accurate and predictable results. But, does the opponent’s knowledge of the type of tools and features you’re going to use increase your risk profile?

While there aren’t any absolutes, I’d certainly say “no.” And, even if this type of gamesmanship did yield a temporary advantage, it’s probably outweighed by a collaborative E-Discovery approach that is quickly becoming a best practice.

If we could only get the E-Discovery tools to fix Spicoli’s car…