Brave New World

"When the individual feels, the community reels."
                              - Aldous Huxley, Brave New World

 

As we all adapt to the “Brave New World” where one’s every thought or utterance can be instantly broadcast to hundreds, thousands, or millions of people via Facebook, Twitter and other social networking media, it stands to reason that some of these electronic “feelings” will impact the legal community and the way electronic information is used in litigation.

 

Despite his fictional view of the future, it’s hard to imagine that Huxley could have foreseen our current environment of lightning-fast relay of stream-of-consciousness meditations. As a primary example, Hadley Jons, a juror in Mount Clemens, Michigan, was removed when it was discovered that she had posted on Facebook that it was going to be “fun to tell the defendant that they’re guilty.”  Naturally, the fact that the trial was not over and the defense had not even begun presenting its case presented more than a little problem . . . 

 Ed White, reporting in The Huffington Post article Juror Hadley Jons Punished For Posting Verdict On Facebooknoted that the posting came to light only because the defense attorney’s son, who was working in his mother’s law office, checked the jurors against Facebook. The judge removed the juror the following day.  Though Ms. Jons apologized, the judge ordered her to write a five-page essay about the constitutional right to a fair trial.

So, in addition to the layer of electronic discovery issues already creating new ways to build and analyze a case, attorneys are now realizing that they will need to review and then monitor electronic social media to make sure that their client gets a fair trial. 

 

As for the rest of us, it’s wise to think of our social media postings in light of one of a favorite quote from Facebook: “If you have the capacity to learn from your mistakes, you will learn a lot today.”

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.
 

Location, Location, Location

 King Edward VII was widely known for his infidelities, and his wife, Queen Alexandra, had to pretend to ignore his affairs and wild escapades. But she got the last word. In a famous, albeit  apocryphal, anecdote, as the King lay on his deathbed in 1910, the faithful and grieving Queen was stricken with one reassuring thought, and she supposedly turned to the King’s aide and said: "Now, at least I’ll know where he is."

  Although Queen Alexandra may have been comfortable with the King’s   whereabouts after his death, organizations cannot and should not take the same comfort with respect to their electronic files. E-files that have been deleted in accordance with an organization’s document retention policy may not be where an organization thinks those files are - gone. To the contrary, the files may be dangerously lurking in the deep dark corners of the organization’s information systems.

 

Unfortunately, when it comes to electronic documents, common document retention and deletion policies and procedures simply may not adequately protect sensitive information from falling into the hands of others. Deleting an e-mail or electronic document may not completely remove the data from a computer or computer system. Instead, the deleted information often remains there, typically on the computer's disk drive, until it is overwritten by other information.  The data can often be recovered using software tools designed for recovering deleted information.

 

When electronic information has not been completely deleted from a computer system, the information may be subject to discovery in litigation.  Kenneth L. Stein and Richard H. An, writing for The Privacy and Data Protection Legal Reporterhttp://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1167818523831, point out a number of cases where information that was thought to have been deleted from a computer system came back to haunt an organization in connection with litigation. In one such case, “forensic analysis of deleted electronic files established that the defendant had perjured himself in his sworn declarations to the court about having had no contact with a certain individual”. See YCA, LLC v. Berry, No. 03 C 3116, 2004 U.S. Dist. LEXIS 8129, at *20-24, 22 (N.D. Ill. May 6, 2004)… In another, “forensic officers were able to recover deleted computer images of child pornography, which led to a lengthy prison sentence for the defendant.” See Anderson v. McBride, No. 2:05-CV-1089, 2006 WL 2468284, at *2 (S.D. Ohio Aug. 24, 2006).

At the end of the day, a company should implement policies that both retain the documents that might be relevant to litigation, and destroys the documents and metadata that might be sensitive and private. A document retention policy that includes automatically deleting e-mails and electronic files, without also wiping the underlying data in those e-mails and files, leads to a false sense of security.

The lesson: unlike King Edward VII, who was safely interred in the chapel at Windsor Castle and hasn’t been seen since, your e-files are not dead and buried until the underlying data is wiped clean. Don’t let your metadata come back to haunt you.

New Year's Resolution: Discovery Hold Policy

So you are in tip top physical condition, you give regularly to charity, you call your mom every other day, and you don't miss the sauce a bit.  Sounds like you're in the market for a New Year's resolution! 

How about this: does your company have a litigation hold policy that covers electronically stored information?  According to a recent Deloitte survey, 30 percent of U.S. companies do not have a formalized process in place regarding legal holds, which are policies that guard against the destruction of relevant evidence when legal action is threatened. 

As has been chronicled on this blawg and elsewhere, the potential pitfalls of poorly executed or nonexistent litigation hold policies are serious, and certainly outweigh the relatively small cost of implementing such a policy.

One thing is certain--electronic information will continue to play a larger and larger role in discovery.  Therefore, if your company has not yet implemented a policy to deal with it, shake the confetti out of your hair on New Year's Day, and pledge to tackle the problem early in the year.

Cheers!

Is E-Discovery Eliminating the Benefits of Arbitration?

The broad scope of Federal Rule of Civil Procedure 26, coupled with electronic discovery and aggressive trial counsel, have increased litigation costs exponentially. (See Arbitration's E-Discovery Conundrum, by Thomas J. Aldrich). As a result, corporations and their legal counsel have recently turned to arbitration in an attempt to escape the huge expansion of document discovery in federal civil litigation. Id. However, as litigation discovery techniques used in federal court trickle down to the arbitration process, the benefits of arbitration - cost-efficiency and speed - have all but disappeared. Id. In an effort to preserve the benefits of arbitration, while balancing the need to discover documents with the cost and burden involved with producing them, many arbitral institutions have developed comprehensive guidelines for dealing with discovery and resolving disputes. Id. In his article entitled "Arbitration's E-Discovery Conundrum", Thomas J. Aldrich provides a rundown of the discovery guidelines propounded by arbitral institutions in an effort to "stem the tide of runaway discovery in arbitration." Id.  Read on to see a summary of his findings.

The International Institute for Conflict Prevention and Resolution

The arbitration committee for the International Institute for Conflict Prevention and Resolution has proposed guidelines for preventing overzealous discovery in arbitral proceedings. Section 1(a) of the protocol reads: "[a]rbitration is not for the litigator who will 'leave no stone unturned…' [Z]ealous advocacy must be tempered by an appreciation for the need for speed and efficiency… [D]isclosure should be granted only as to those items that are relevant and materials for which a party has a substantial, demonstrable need." Id. The guidelines state that the disclosure of electronic documents shall follow the general principles of narrow focus and balancing cost, burden and accessibility with the need for disclosure. "Production of e-materials from a wide range of users or custodians, which is both costly and burdensome, should not be permitted without a showing of extraordinary need." Id. 

 

The guidelines also contain a list of various "levels" of disclosure from which the parties may select. Mr. Aldrich summarizes the levels or "modes" of disclosure succinctly when he states:

"Mode A, the narrowest scope, provides for no prehearing disclosure other than copies of printouts of e-documents to be presented in support of each party's case. Mode B provides that each side produce e-documents maintained by an agreed limited number of designated custodians, that the disclosure be limited to e-documents created from the date of signing the arbitration agreement to the date of filing the request for arbitration, and that production be limited to e-documents from primary storage facilities. In other words, no documents from backup servers, backup tapes, cell phones, personal digital assistants or voicemails will be produced. And no information obtained through forensic methods will be admitted in evidence." Id.

"Mode C provides for a larger number of specified custodians and a wider time period than Mode B, and also provides that the parties may agree to allow documents obtained through forensic methods to be admitted. Finally, Mode D provides for disclosure of electronic information regarding nonprivileged matters relevant to any party's claim or defense, subject to limitations of reasonableness, duplicativeness and undue burden. It is a broad level of disclosure similar to that required or permitted under FRCP Rule 26." Id. 

 

The Chartered Institute of Arbitrators

 

The article also discusses the Chartered Institute Protocol for E-Disclosure in Arbitration, which was put into effect in October 2008. See Chartered Institute Protocol for E-Disclosure. The purpose of the Protocol is "(1) to achieve early consideration of disclosure of documents in electronic form ('e-disclosure') in those cases where early consideration is necessary and appropriate for the avoidance of unnecessary cost and delay; (2) to focus the parties and the tribunal on e-disclosure issues for consideration, including the scope and conduct of e-disclosure (if any); and (3) to address e-disclosure issues by allowing the parties to adopt this protocol as part of their agreement to arbitrate a potential or existing dispute." Id. The Protocol delineates what is necessary for "early consideration;" the necessary contents of a request for disclosure of electronic documents; how electronic documents are to be produced; and the procedure and allocation of costs associated with electronic disclosure of documents. Id. 

 

International Centre for Dispute Resolution

 

Mr. Aldrich also discusses the rules for the exchange of information promulgated by the ICDR, the international arm of the American Arbitration Association. See ICDR Guidelines for Arbitrator Concerning Exchanges of Information. The Guidelines provide that "while arbitration must be a fair process, care must also be taken to prevent the importation of procedural measures and devices from different court systems, which may be considered conducive to fairness within those systems, but which are not appropriate to the conduct of arbitrations in an international context and which are inconsistent with an alternative form of dispute resolution that is simpler, less expensive, and more expeditious." Id. Under the Guidelines, the only documents to be exchanged are those on which a party relies. The Guidelines specifically address electronic documents, and state:

 

"When documents to be exchanged are in electronic form, the party in possession of such documents may make them available in the form (which may be paper copies) most convenient and economical for it, unless the tribunal determines, on application and for good cause, that there is a compelling need for access to the documents in a different form. Requests for documents maintained in an electronic form should be narrowly focused and structured to make searching for them as economical as possible. The Tribunal may direct testing or other means of focusing and limiting any search." Id. 

 

Conclusion

 

While it is obvious that some arbitral institutions are taking steps to regulate discovery in arbitration proceedings, others lag behind. Even with these protocols, it is up to the parties and the arbitrators to enforce them, "stem the tide of runaway e-discovery in arbitration" and preserve the benefits associated with alternative dispute resolution. For a full discussion of these issues, click here to read "Arbitration's E-Discovery Conundrum" by Thomas J. Aldrich.