Impatient Judges Push Lawyers to Dive Into E-Discovery

Monica Bay

Law Technology News

12-07-2012

If you are wondering why the annual Georgetown Law Advanced E-Discovery Institute draws attendees faster than a One Direction concert attracts tweenagers, here's the reason: the opportunity to interact with the elite posse of jurists who are determining the future of electronic data discovery. Of course, that's not a slam against the other panels offering continuing legal education credit during the two-day conference at The Ritz-Carlton in Tysons Corner, McLean, Va., near Washington, D.C.

But no one ever wants to miss the conference's signature first-day morning session, entitled "E-Discovery Case Law Update." As is its tradition, the ninth version of the panel featured Judges John Facciola, Paul Grimm, Andrew Peck, Shira Scheindlin, who were joined this year by Judge Xavier Rodriguez and moderator Kenneth Withers, director of Judicial Education for The Sedona Conference. Facciola and Peck are magistrate judges for the District of Columbia and the Southern District of New York, respectively; Scheindlin and Rodriguez are federal district judges for the Southern District of New York and the Western District of Texas, respectively. On Tuesday, Grimm was confirmed by the U.S. Senate and will be elevated from magistrate judge to district court judge for the District of Maryland.

The judges spent 90 minutes analyzing recent key EDD cases, identifying 2012's most important trends and issues. There was a decided theme of reluctant "judicial activism:"  Collectively, the group expressed frustration that lawyers were not taking the lead in EDD disputes, and thus, in essence, forcing the judges — rather than the parties themselves — to determine protocols and strategies. The judges pushed several dominant themes: the need for lawyers to take the "meet and confer" obligations seriously; to educate themselves on technology options; and to be reasonable and realistic about e-discovery protocols, ranging from search terms to what can reasonably be discovered without breaking the parties' banks.

They addressed the controversial Pippins v. KPMG labor case, which tackled the issue of how much data preservation is reasonable. Grimm noted that there are "overlapping concepts on the notion of proportionality," and predicted that there will be a continuing "dialogue going on over the next couple of years." There will be more attention to cost allocations and shifts, he predicted, and "incentives to avoid overbroad discovery."

Boeynaems v. L.A. Fitness, a case that appears to apply proportionality principles (although it does not use that precise terminology) was discussed as a counterpoint to Pippins. The two cases triggered the judges to lament about how parties are not providing sufficient information to the court to assist judges in making proportionality decisions.

Predictably, predictive coding (aka technology-assisted review or computer-aided coding) remains a hot button in 2012. In  EORHB Inc. v. HOA Holdings LLC (C.A. No. 7409-VCL), a matter that came before the Delaware Chancery court, the parties were ordered to "show cause" as to why they should not use computer-aided review. Judge J. Travis Lasker's bench order that the parties choose a single e-discovery provider to handle review set the blawgosphere afire, some suggesting that the judge had overstepped his role, the judges told the Georgetown audience. Among the blogs covering the case: LTN's EDD Update report; Kevin Brady's post on the  Delaware Corporate & Commercial Litigation Blog;  Xerox' Sheila Mackay; BLLAWG (Anna Biblowitz, Ralph Losey's e-Discovery Team; Liquid Litigation Management), and Clearwell System's E-Discovery Blog 2.0 post by Matthew Nelson: "Judicial Activism Taken to New Heights in Latest EORHB (Hooters) Predictive Coding Case."

In General Electric v. Wilkins, 2012 WL 570048 (E.D. Cal. Feb. 21, 2012) — a case arising from a disputed patent interest — defendants sought an order compelling the plaintiff to use specific criteria to search 405 backup tapes used to store computer server content, explained Withers in his case summary. "The plaintiff alleged that the retrieval costs were prohibitive, while the defendants countered that the true cost was a fraction of the plaintiff's estimate. The district court denied the defendants' request because it concluded that the tapes were not reasonably accessible and that the did not demonstrate 'good cause' requiring the plaintiff to expend resources to make the tapes accessible."

"Specifically, the court found that the defendants did not show that there were likely responsive documents on the backup tapes that had not already been produced," Withers noted.

The question becomes, said Scheindlin, "at what point does the court feel that a party has to defend its discovery? At what point do you second guess? No court in its right mind does that sua sponte. I wait until someone complains." Scheindlin praised General Electric for its posture. "G.E. was a pretty smart litigator," she said. "G.E. let them look at backup tapes for three days." Ultimately, the court said G.E. had met the burden that it would be unreasonable to do further exploration. "A great opinion," she said.

Grimm addressed the importance of pre-motion conferences, and urged the audience to take them seriously and get involved early. "It takes a particularly dense litigator not to get the message." Scheindlin agreed, urging lawyers to take advantage of the conferences to work out discovery protocols. But Peck reminded the audience that not everyone is drinking the Kool-Aid: "We still have to remember that the key difference between the old days and electronically stored information is that so many lawyers still do not get it. There is a lot of learning that still has to be done."

Government agencies, in particular, are handcuffed with miniscule budgets for e-discovery tools, the judges noted. Said Rodriguez, "The trickle-down is years away," saying the Federal Bureau of Investigation, Homeland Security, and state and local police simply don't have enough money to properly adopt e-discovery protocols. But, said Scheindlin, the exception that proves the rule is the Securities & Exchange Commission. "The SEC has got the message," she said, praising its use of e-discovery protocols. (LTN board member Patrick Oot is the SEC's special counsel for e-discovery.)

Audience members were enthusiastic about the panel. Said Mark Michels, a director at Deloitte Financial Advisory Services: "It was the usual, thoughtful commentary by our leading jurists, with a discussion that focused on increased judicial activism."

"First of all, this demonstrates the power of the Georgetown conference to have the leading jurists all here on one stage," said Paul Weiner, a shareholder and national e-discovery counsel at Littler Mendelson. "From a case law perspective, we are continuing to get discussions on all aspects of e-discovery, whether it be production, proportionality, document review, or predictive coding."

The judicial activism will coax practitioners into adopting e-discovery, observed Russell Miller, senior manager of Ernst & Young, based in Washington, D.C.

Monica Bay is editor-in-chief of Law Technology News and a member of the California bar. Email: mbay@alm.com. Twitter: @lawtechnews @LTNMonicaBay