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.
 

Googling and Tweeting and Facebooking, Oh My! Jurors Conducting Outside Research During Trial

The Internet and sites such as Twitter offer many opportunities to create more transparency in the justice system, beyond reporting by the mainstream media.  The University of Montana's blog / tweet project on the W.R. Grace trial is just one intriguing current example.  More on that fascinating endeavor here

But the increasing mobility of Internet access has other unintended consequences that cross into the E-Discovery arena.  The New York Times online posted a fascinating article  (note:  New York Times login required)highlighting the sharp increase in the number of jurors who violate the court's routine admonition not to conduct any outside research on the case.  A growing number of jurors are conducting Internet searches on their BlackBerrys or iPhones or sending "tweets" or blogging about the trial via the Internet - sometimes even while they are hearing evidence at trial.

This juror misconduct ranges from a juror "Googling" information regarding factual issues in the case, to a juror who posted periodic updates on the conduct of the trial to Twitter and Facebook.  And it's not just an isolated phenomenon.  In one case the New York Times article discusses, a juror in a federal criminal prosecution admitted that he had conducted outside research on the Internet.  Thinking this an aberration, and an issue that could be resolved simply by removing the offending juror from the jury, the trial judge questioned the other jurors on the panel.  Turns out eight other jurors had been doing the same thing!  The court had no other option but to declare a mistrial.

Trial judges have routinely instructed jurors for years not to conduct outside research.  And, in the past several years, judges have modified those instructions to include admonitions not to conduct any research via the Internet.  Nonetheless, the number of jurors violating those instructions - and causing mistrials or ripe issues for appeal - has grown as the ease and means of accessing information have grown.

Why is it a problem?  Let jurors do outside research and you might as well throw the Constitution and the Rules of Evidence out the window.  The exclusionary rule would have no meaning if jurors could just Google newspaper accounts of the investigation and perhaps even key documents, or read the notoriously easily manipulated articles on Wikipedia.

What is a trial lawyer to do?   We certainly don't want all juries sequestered, with their iPhones, BlackBerrys and laptops locked away in the custody of the court, for the duration of trial.  Some less-drastic alternatives:

  • Ask the trial judge to expand her boilerplate admonition to incorporate an explicit explanation of the policies behind the rule and the consequences of violating the rule.  Be prepared with your own draft admonition and submit it with your jury instructions. 
  • To the extent that the judge or your jurisdiction permits you to do so, use voir dire to (1) educate the panel regarding why they shouldn't do outside research, including Internet research, and (2) enlist the jurors in helping the court enforce that restriction. 
  • In Arizona, where I currently practice, jurors can submit questions to be asked of a given witness.  Sometimes those questions may clue you in that jurors are doing improper outside research.  Be alert to the possibility, and be prepared to ask the court to inquire.
  • Bone up on your e-discovery law, and be prepared to subpoena text message records, laptop hard drives and other ESI if you suspect juror misconduct created an appealable issue.

Finally, don't ignore the upsides and opportunities our wired age provides the diligent litigator.  As the NYT article notes, many trial attorneys now conduct their own Internet research on prospective jurors.  Look at those Facebook and MySpace pages.  Read those blogs, tweets, and websites. 

My Boss May Own My Facebook Page !?

Social networking websites have taken the world by storm.  On MySpace and Facebook, users lovingly chronicle the intimate details of their lives, post their current relationship status and feelings, provide spontaneous opinions, and upload off-the-cuff photographs.  Even the more professional networking site LinkedIn, is now trying to become more social by adding a blog application.  Unfortunately, users often post without considering the trail of evidential bread crumbs they leave in their wake.  Just last week, Virgin Atlantic Airways fired 13 members of a cabin crew after they allegedly posted inappropriate comments on Facebook.  And today, investigators visit these sites as a matter of course when looking into an individual for purposes of employment, college admission, background checks for criminal activity, and so on.

This growing use of social network information raises two important questions for the corporate world in this new age of electronic discovery:

1. Are social networking sites accessed using an employer's computer, fair game when it comes to electronic discovery and document production?

2. If social networking pages are produced as part of electronic discovery, would this information then be admissible in court?

First, employees will notice that their personal workplace computers sometimes "remember" their MySpace or Facebook password -- not to mention gmail, hotmail, yahoo, and other accounts -- when they sign on.  That's because the website browser takes note of and saves the password.  But here's the catch.  Because the password exists on the employer's hard drive, that password and therefore access to the social networking page, are literally within the possession, custody, and control of the employer.  With the right IT know-how, the employer can easily access the site.  The unanswered question is, is the social network page in the legal "possession, custody and control" of the employer?  What happens when the employee or employer gets sued, and the social networking page becomes responsive to document requests?

It may depend on whether the adverse party is the employer or a third entity.  In the case of the employer being sued, perhaps the employee is alleging discrimination in the workplace, and has a discussion on his Facebook page about how he made up the whole story.  Does the employer have the right to access the Facebook page on its own?  If not, does the employer have the right to demand images of the page in their document requests?  The employer's argument would be that by accessing the page at work, the employee waived any right to claim that the site is private and personal.  An even broader argument is that by posting personal information on a world-wide web, the employee has automatically given up any pretense of personal privacy at all, to the world at large.

A different implication arises if the employer is being sued by a third party for, say, legal malpractice.  The third party does not have direct access to the Facebook page or the password. Does the third party have the right to request the employee's Facebook website through document requests to the employer?  The employer, who has the password in its records, may be able to access the Facebook page.  The answer hinges on whether the Facebook page is in the possession, custody or control of the employer, thereby requiring the employer to produce it to the third party.

Second, even assuming that the Facebook page must be produced, it still may not be admissible in court.  Because websites are amorphous creatures, one must take a "snapshot" of the page in order to preserve a site as it existed at a particular moment.  This process raises numerous evidentiary issues under the admissibility rules for standard electronically stored information. This includes considerations of relevancy, hearsay, authenticity, the "best evidence" rule and undue prejudice. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. May 2007).

In sum, more people sign up for social networking websites every day.  It is only a matter of time before attorneys routinely request social networking pages during certain types of lawsuits.  The law is still uncertain as to when and whether such pages must be produced, and whether those pages are going to be admissible in court.  Employers should be mindful of these issues, and should impress upon their employees the dangers of posting inappropriate materials on their social networking pages.  Similarly, employees should be aware that what they post -- even if they explicitly limit access to their page to friends only -- may someday come back to haunt them.