The Ringmaster or the Clown? Dealing with the E-Discovery Elephant in the Room

It is rare to find one of those shared tenets that defy all cultural, geographic, and chronological boundaries -- some fundamental underpinning of life found everywhere from the days of the caveman to the modern age. One we can all agree on, however, is that a professional's worth is and always has been commensurate with his or her experience. The senior dragon slayer of King Arthur's round table received a shinier suit of armor than the new guy. The master caveman's time and worth rose above the apprentice's. And in present day law firm culture, the value of the Associate is often dwarfed by that of the Senior Partner in the cozy corner office.

Electronic discovery, however, has turned this fundamental dynamic on its head. In most areas of the law, change is effected in small increments, opinion by opinion and statute by statute. Sage senior lawyers add to their existing knowledge by keeping up on recent developments -- no fundamental change in thinking is required. Electronic discovery, however, has forced a radical, qualitative change in almost every aspect of how discovery is conducted. Heck, an entire Federal Rule of Civil Procedure was rewritten to account for it. And the dreaded "it" -- that virtual elephant in the room -- is everywhere. As Judge Shira Scheindlin of the Southern District of New York observed in an interview, "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery."

This ever-expanding nature of e-discovery is carving out a unique dynamic in the three-ring circus that is the Law Firm and the in-house legal department. In short, the problem is that the two parts of the equation needed to master e-discovery (expertise in discovery law and procedure, and expertise in electronic media) are currently located in two separate circus rings: the Ringmaster's and the Clown's.
 

  • The Ringmaster: In one outer ring you have the partner, our Ringmaster, an experienced and respected litigator so well-versed in discovery procedures and law that he or she can write interrogatories and respond to document requests while juggling oversized balls of Case Strategy, Knowledge and Experience for the client in the front row. It is true that there are Ringmasters who are also well-steeped in the art of e-discovery, who have taken the initiative to learn everything about it and keep up on the latest social networking arrivals. This article is not addressed to these Ringmasters. It is addressed to the more litigation-centric ones -- and there are many -- who view discovery as more of just another step on the way to the ultimate trial and motion practice, than a living entity in its own right. Ask such a Ringmaster for electronic search protocols and you will receive a list of terms that do not capture the depth and breadth of materials needed. Say "Twitter" and he or she will ask about your bird-watching hobby. E-mail them about Flickr and you'll get berated for spelling mistakes.
     
  • The Clown: In the other outer ring you have the young associate, our Clown, who is still on some level struggling to appreciate the distinction between general and specific objections to document requests. But at the same time, our Clown has a unique appreciation for electronic discovery that the Ringmaster often does not.  The Clown is intimately familiar with all potential bastions of electronic communication, from e-mail and iPhones to Twitter, YouTube, Flickr and Facebook. He or she appreciates from personal experience that social networking sites are interactive and amorphous circus animals, such that the only thing unchanging about them is the fact that they change several times a day. Even coming up with electronic search protocols requires a working knowledge of computer technology nowadays. Judge Scheindlin observed that, "People think they've searched and they haven't looked in the right places, haven't communicated with the right people, they haven't used best technology to go through materials they do have." Younger associates know where and how to find the most obscure information online. They cut their e-teeth on Google. They have run countless word-searches on Westlaw, learning from experience how to best craft searches to obtain the results they need. They know what types of computer applications to find documents in. Microsoft is their friend.

There is no doubt that Ringmasters are more than capable of learning the basics through articles, lectures and other means. But there is a difference between knowing that and knowing how. For Clowns -- many of whom check Facebook and Twitter before they brush their teeth in the morning -- the intricacies of electronic communication are as intuitive as the art of humor. To expect many Ringmasters to extract secondhand a deep understanding of how these new innovations work and to obtain what he wants from them, is like asking a law student to fully comprehend the Federal Rules based on a first-year Civil Procedure class. Just as it takes practicing in a real courtroom for the isolated rules to "click", immersion into electronic communication is needed to truly appreciate its fine points. Plenty of Ringmasters can and have done this. But plenty more have not. As Judge Scheindlin observed, "Those of us who are a little older, shall I say modestly or immodestly, [ ] it's too late for us. We can't really change completely. But for these young people coming out the world will change with them."

And it is. Just a couple of weeks agok, the court in Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009) implied what would happen in the e-discovery circus if, in a sequel to blockbuster flick I am Legend, a genetically-engineered cure to a devastating illness had the unintended side effect of wiping out the associate population -- and since Will Smith's character was snuffed out in the first movie, there was no one to create a cure. The answer: the partner may find himself balancing the trapeze without a safety net. The Chen court refused to award the prevailing plaintiff its attorneys' fees based on its attorney's normal hourly rate, for the time the attorney spent on e-discovery. Why? The attorney, a partner with twenty years of experience, almost certainly knew general discovery law inside and out. No matter:

"[The attorney's] inhibited ability to participate meaningfully in electronic discovery tells the Court that she has novice skills in this area and cannot command the rate of experienced counsel."

There is no doubt that this was a good lawyer -- she won the case, after all. And the defendants had to pay her regular fee for all other portions of the case. But the court ordered the attorney's rate to be reduced on e-discovery matters to $200 for, as an example, "failing to offer search terms for the delivery of relevant ESI." Given that some partners in Seattle bill out at over $400 an hour, it is possible that this attorney's e-discovery fees were halved. Ouch.

This divide between Ringmasters and Clowns will only widen as social networking expands. Niche social networking sites are emerging every day -- some recent new ones include Ning, Sodahead, Bebo, Fanpop, Imeen, and Eons. The British government has published a guide to help ministers understand how to use Twitter, with the aim of extending its news and corporate messages online. And major companies are now using these resources as networking and branding tools to communicate with consumers and offer an inside look at the company in more intimate, real-time fashion than a website. As noted in a recent U.S. News article, Victoria's Secret, Southwest Airlines, Mastercard, The Gap, and Starbucks are using Twitter and Facebook. And now smaller businesses are joining the Twitter fray. As Zappo CEO Tony Hsieh recognized via Twitter update, borrowing a phrase from the eminently-quotable Winnie-the-Pooh, "You can't stay in your corner of the forest waiting for others to come to you. You've got to go to them sometimes."

The resulting interactivity -- and the brazenness with which these social corporations are lifting the veil that separates individual consumers from company executives -- is astounding. And it foretells the inevitable legal tangles to come in all types of litigation, from false advertising to employment, patent, defamation, government investigations into off-label promotion practices of pharmaceutical companies, and many others. (A defamation lawsuit was just filed in Chicago against a woman for "twittering" that her management company was tolerant of moldy apartments.) Unfortunately, most of the legal issues posed by social networking have yet to see the inside of a courtroom. The area is new, and the old rules may not apply. Social networks such as Facebook change appearance by the minute, making it difficult to track down the specific version relevant to a litigation. On the other hand "Tweleted," a site that digs up deleted Twitter Posts from Twitter's search engines, is now taking the world by storm. Even more confusing, all social networks -- even any two Facebook accounts -- are not created equal. Whether their content is fair game for e-discovery may depend on individual privacy settings: whether an owner allows general access or access only by "friends."

Think of a social network like the typically elaborate circus car rolling into the Center Ring. A Ringmaster may see a car with a capacity for four or five occupants, each of which the Ringmaster will question thoroughly. The Clown will more often see a car in which an unlimited number of occupants can fit -- every friend, every follower, every update, post, blog, tweet and related "app". He or she will know that each of these occupants should be questioned, but will not be quite sure where to go from there. It is clear that one way or another, the Ringmasters in their circus ring of discovery knowledge and experience, and the Clowns with their technology expertise, need to come together in the Center Ring. This can be done any number of ways:

  • Encourage more Ringmasters-Clown Collaboration. Partner-associate interaction in e-discovery should resemble more of a shared collaboration than a senior person doing the higher-level work and delegating the lower-level tasks to a junior. Unlike many areas of the law, a young associate may have significant input to offer on e-discovery matters -- where to look, what to look for -- even if he or she does not recognize that at first glance due to lack of in-depth knowledge about discovery procedures.
     
  • Make Clowns the Ringmasters of the Center Ring.  Choose a small number of young associates and turn them into "one-stop shopping" experts by deepening their knowledge of discovery law and process to supplement their knowledge of electronic media. Send them to CLEs. Give them 50 non-billable hours for the year to read up on discovery issues. Have them present CLEs, or write law journal articles or blog entries applying the law and process to new social media. As e-discovery options and procedure expand, these younger associates will be best poised to recognize the issues.
     
  • Sole practitioners and small firms are in the hardest position.  The Chen attorney was a sole practitioner or close to it, with little to no associate knowledge to rely on. This is typically the case in very small firms. As the role of e-discovery and social media in litigation expands, these partner-shareholders will need to master these new e-media themselves -- mere knowledge of discovery in general will not be enough, and relying on non-legal e-discovery consultants who do not know the case, and/or are not attorneys, is risky. Alternatively, they should consult with younger attorneys on a part-time basis, who can provide some focus on what to look for, where, and how.
     
  • Graduates of Clown U.  Senior associates and junior partners are not yet Ringmasters, but have left their Clown days behind. They grew up in the tail end of the Paper Age and the beginning of the E-paper Age. E-mail emerged in junior high or high school, the World Wide Web in college or law school, and Westlaw a couple of years before or after they started law school. These lawyers are almost as savvy at the technology side of e-discovery as the Clowns. The difference is that (1) they do not take it for granted, because they spent formative years without it; and (2) it is not as intuitive for them; they have to work at it a little more, particularly the newer forms of e-communication. Facebooks and Twitters are divergences that they understand and even use, but without quite the same level of immersion. Their advantage, however, is that in being less fascinated with the bell-and-whistle details they are more apt to see the 'big picture' -- to view these tools as the latest but not greatest fads, and to be able to anticipate, given their knowledge of both law and the technology, what will come next. Yes, they have things to learn both from the Clown and the Ringmaster, and they (like Ringmasters) must make an effort to keep themselves fresh when it comes to each new wave of e-communication, something that comes more naturally to Clowns. If they do, their knowledge of both outer circus rings may propel them farther and faster than Ringmasters or Clowns.

These are not the only solutions. The point is, however, that now is the time for firms and corporations to position themselves for a future in which e-discovery will play an even larger role, by recognizing that the traditional bright-line Ringmaster-Clown, partner-associate dynamic cannot function in this area. If they fail to do so, they may find themselves in the middle of the circus, hanging from the trapeze with -- like the Chen attorney --only half a safety net below.
 

Watch the Data Mapping Webinar Here


The ESI Data Map - What Inside Counsel and Records Managers need to know

A recording of the March 24, 2009 encore presentation of the popular webinar The ESI Data Map -- What Inside Counsel and Records Managers Need to Know is available for viewing above.  Just click on the arrow on the lower left corner to play. We welcome your feedback on the presentation. 

 

Tee Up Your Document Retention Policy -or End Up in the Woods

In a widely reported anecdote, pop singer Christina Aguilera was once introduced to golfing superstar Tiger Woods, one of the most recognized people on Earth. “Christina, I love your music,” Woods declared. “I have all your CDs...” “Sorry, I don’t follow tennis,” Aguilera said, “so I don’t know much about you.”

 

Unfortunately, ignorance is no excuse when it comes to compliance with record-retention policies and apathy will result in serious trouble.   The legal and regulatory risks associated with noncompliance include costly penalties, court sanctions, and adverse judgments.  In addition to these compliance risks, companies must also consider potential financial and strategic risks. According to Rich Bailey in “Leveraging Enterprise Records Management” in the Sarbanes-Oxley Compliance Journal, a recent survey found that “roughly 50 percent of respondents said they are less than confident that, if challenged in court, their organization could demonstrate that their electronic information is accurate, accessible, and trustworthy. Only now are organizations realizing the complexity and compliance requirements associated with e-records, including electronic documents, data, e-mail and instant messages. Another survey by CFO.com found more than one-third of top-level executives say their companies don’t have a disciplined way to deal with electronic discovery issues.”

 

ONE THIRD! That’s a lot of executives who are at serious risk of consequences due to their shortcomings in preparedness in dealing with electronic discovery issues. If your company has not already evaluated adopting a document retention policy, adopted a policy or, worse yet, is not following its existing document retention policy, get on the ball or you may end up being like another golfer, Harry Tofcano, who said, “I’m hitting the woods just great, but I’m having a terrible time getting out of them.”

Free Data Mapping Webinar -- March 11, 2009

Join us on Wednesday, March 11, 2009, for the first of a series of three webinars designed to offer practical advice to organizations attempting to get a handle on their ESI.  The first webinar in the series, titled The ESI Data Map:  What Inside Counsel and Records Managers Need to Know, will run for one hour and break down the benefits of creating a data map of your organization's IT infrastructure.  John Collins, the Vice President of Consulting for The Ingersoll Firm, will lead the webinar with commentary from yours truly, Kelly Twigger of Quarles' Records Retention and E-Discovery Team, and  Lisa Berry-Tayman of Kahn Consulting.  I will discuss the benefits of utilizing a data map in an over all strategy to prepare for preserving, collecting, reviewing and producing electronic information as a way to identify where ESI lives in an organization's infrastructure and how best to consider implementing changes to reduce costs in storage and producing ESI.   Lisa will offer insights into how a data map fits into an organization's records management program and the importance of communication among multiple groups within the organization for successful implementation of any records program.  The webinar is free.  Click here to register. 

Need a Reason to Hire E-discovery Counsel? Here Are $6 Million.

Not having knowledgeable e-discovery counsel can be costly -- a lesson the Office of Federal Housing Enterprise Oversight (OFHEO) found out the hard way.  Failure to devise a comprehensive plan for responding to a third party subpoena seeking ESI ended up costing the agency over $6 million to comply with a court order, more than 9% of the agency's entire annual budget. In a rare Court of Appeals decision, In re Fannie Mae Securities Litigation, 552 F.3d 814 (D.C. Cir. January 6, 2009), the D.C. Court of Appeals affirmed the district court's order holding the OFHEO in contempt for failing to comply with a discovery deadline to which it agreed.  But it's a bit more complicated than that.


The OFHEO regulates Fannie Mae and Freddie Mac, government sponsored enterprises participating in the secondary mortgage market.  Fannie Mae is subject to a number of private civil actions which have been consolidated into multidistrict litigation in the U.S. District Court for the District of Columbia.

In the summer of 2006, individual defendants who were former Fannie Mae executives subpoenaed 30 categories of documents from the OFHEO.  The OFHEO was not a party to the litigation.  After some discussion, the request was limited to certain email communications stored on OFHEO's network and backup tapes.  By the summer of 2007, OFHEO reported that it had produced all of the documents requested.  The defendants conducted a 30(b)(6) deposition of OFHEO, and learned that it had failed to search all of its off-site disaster recovery tapes.  A few months later, after the OFHEO failed to produce additional documents, the individual defendants moved to hold OFHEO in contempt.  Following the first day of the contempt hearing, OFHEO and the individual defendants entered into a stipulated order that required OFHEO to conduct searches of its disaster-recovery backup tapes and provide all responsive documents and privilege logs by January 4, 2008.  The order contained the following provision:

OFHEO will work with the Individual Defendants to provide the necessary information (without individual document review) to develop appropriate search terms.  By October 19, 2007, the Individual Defendants will specify the search terms to be used.

Pursuant to the stipulated order, the individual defendants submitted over 400 search terms, which covered approximately 660,000 documents.  OFHEO objected on the grounds that the stipulated order limited the individual defendants to "appropriate search terms," not a list that was "tantamount to a request for the dictionary."  The District Court disagreed, and ruled that the stipulated order gave the individual defendants sole discretion to specify search terms and imposed no limits on permissible terms.

OFHEO undertook extensive efforts to comply with the request, hiring 50 contract attorneys solely for that purpose, and spending over $6 million dollars.  OFHEO moved for and received two extensions, but failed to meet the deadline.  The individual defendants renewed their motions for contempt, and the district court granted them, finding that the OFHEO's efforts at compliance were "too little, too late."  As a sanction, the court ordered production of all documents withheld on the basis of the qualified deliberative process privilege and not logged by the January 4, 2008 deadline.

After a thorough analysis of the language in the order, the Court of Appeals upheld the district court's ruling, holding that "whatever ...ambiguities may lurk in the stipulated order, it unambiguously requires OFHEO to process the search terms the individual defendants specify."  Id. at 821.

The OFHEO made another challenge: that it substantially complied with the stipulated order in good faith, and that contempt was therefore inappropriate.  The Court of Appeals recognized that if its was deciding the matter in the first instance, it might not have held OFHEO in contempt.  However, because the review was for abuse of discretion, and the Court found that the OFHEO provided no basis for concluding that the district court abused its discretion in finding OFHEO in contempt.

What are the expensive lessons learned?

  • Hire knowledgeable counsel upfront to deal with the issues inherent in producing ESI.  Cleaning up a mess later is much more expensive.  You need counsel who understand the nuances involved, the technical issues and the potential expense associated with preserving, collecting, reviewing and producing ESI.
  • Negotiation of search terms is a standard step in producing ESI, and not one to be entered into lightly.  It could likely have saved millions of dollars here, where the OFHEO gave defense counsel carte blanche to decide the terms.Work with your counsel to develop a plan that is efficient, cost-effective and fulfills your obligations under the federal rules. 
  • Then, and this is important, get the parties to agree to it or go to the judge and get sign off before undertaking any expense.  It is unlikely, absent the OFHEO's shenanigans of failing to respond or pretending the Court's November 2006 order didn't include ESI, that the district court would have required the OFHEO to spend $6 million to produce information.  So the Court of Appeals suggests, and recent decisions from district courts are in line with approaches that minimize the costs to parties, especially third parties to an action.
  • Once you have sign off of your obligations, execute the plan, document your steps and move onto the next challenge.

Continuing to deny that knowledgeable counsel is needed in this new and rapidly developing area of the law will continue to cost organizations copious amounts of cash.  And who can afford that in this economy?  

Kudos to Liz Chamberlin for assistance with this post.

Our Blawggers

Wendy K. Akbar is the Editor-in-Chief of E-discovery Bytes and a senior associate in the firm's Phoenix office. Wendy devotes part of her litigation practice to counseling firm clients on the production of electronic documents and pre-litigation document retention. Wendy specializes in intellectual property litigation, handling a variety of patent, trademark, copyright, trade secret and false advertising disputes. Wendy was clawed back into the Never-Never-Land of e-discovery several years ago because she learned too late -- much to her chagrin -- that a major side effect of working in the world of pharmaceutical drugs, semiconductor devices, biotechnology, medical devices, and computer systems, is lots and lots of e-paper. Second star to the right and outside the office, Wendy enjoys spending time with her husband, painting and sketching, playing tennis and reducing the most serious things in life to silly rhymes. For a copy of Wendy's firm bio, click here.

 

William "Bill" Hamilton is a partner in the Tampa office. Bill is a Board Certified in Commercial Litigation and Intellectual Property Law, and teaches electronic discovery at the University of Florida College of Law. Bill is the Founding Chair of the Advisory Board of the Association of Certified E-Discovery Specialists. Bill was initiated to foundation shaking tremors of e-discovery more than 10 years ago while defending class action consumer and antitrust claims. Since then he has been an avoid explorer of our new information ecosphere and its impact on litigation. Bill often writes and speaks on electronic discovery, punctuating his Socratic meanderings with occasional efforts to bring moments of hope and humor to the denizens of the too often anguished world of the data deluge. For a copy of Bill's bio, click here.

 

Steven Hunter is a partner in the firm's Chicago office. Steven has managed multiple large-scale ESI productions and uses that experience to help clients develop cost-effective solutions to digital age discovery management. Steven is a ACEDS certified electronic discovery specialist and (in addition to contributing to our blawg) writes a regular article on emerging trends in electronic discovery for a national magazine. Steven regularly (and unabashedly) uses his interest in cross-border data production disputes as an excuse for international leisure travel. For more on Steven, click here.

 

 

John Schaak is a senior associate in Quarles & Brady's Commercial Litigation group. In addition to managing electronic document reviews, John has spent his fair share of time reviewing and clicking documents, and then reviewing and clicking some more. During his time in the trenches, John came to thoroughly appreciate the value of a properly planned and efficient approach to discovery (including the effective use of keyword searching to narrow the data that will be reviewed, so as to reduce the cost to his clients and spare the spirit of the poor souls who will actually have to review that data). When he is not in the e-discovery trenches, John spends his time at home with his wife and three daughters (and maybe a little time on the golf course when no one is looking). Click here if you would like to see John's firm bio.

 

  

 

Joe Wilson is an associate in Quarles and Brady's Labor and Employment and Commercial Litigation practice groups.  He is frequently involved in e-discovery disputes, and has even caused a few himself.  Joe lives in Milwaukee with his wife and two daughters, and prides himself as the father of the Leapfrog savviest three year old around.  For a copy of Joe's firm bio, click here.

 

 
 

 

 

Chad Wiener is a senior associate in the firm's Corporate Services Group. He represents corporate clients in mergers and acquisition transactions, contractual matters, compliance with corporate governance requirements, and periodic reporting requirements. Chad and his wife live in the Milwaukee area with their fifteen month old son. For a copy of Chad's firm bio, click here.