Nothing draws a crowd of lawyers like the chance to listen to judges, especially when the agenda includes the likes of United States District Court Judge Shira Scheindlin and Magistrate Judge James Francis IV, both of the Second District of New York, and Circuit Judge Peter Flynn, Circuit Court of Cooke County, Chancery Division, Illinois State Courts.
All three are provocative speakers, and the trio was in high gear on May 1st, at an entertaining and innovative program that included panels with speakers in three cities.
The event, "A Consortium on Litigation, Information Law & E-Discovery," was co-sponsored by Thomson Reuters and the Electronic Discovery Institute, and accomplished with the help of Cisco Systems Inc.’s Telepresence video conferencing in San Jose, Chicago and New York. Scheindlin and Francis spoke from New York; Flynn participated from Chicago.
Each city’s conference ran from early morning through late afternoon, with three "national" simulcast panels timed to work live in all three time zones. Each location filled the remaining time with local programming. The national topics included data breach response plans, IT and information governance, and patent evolution. Local panels ranged from technology-assisted review and global investigations to litigation holds and more.
The ambitious program, "Judges Meet the General Counsel Department," featured nine panelists. Moderated by Robert Owen, a partner at Sutherland Asbill & Brennan, and president of EDI, the panel addressed proposed changes to the Federal Rules of Civil Procedure’s e-discovery rules, focusing specifically on Rule 26 and Rule 37(e), addressing discovery scope and limits, and cooperation, respectively. (See "Are We on the Cusp of Major Changes to E-Discovery Rules?" by Henry Kelston.)
All three judges were refreshingly frank and excellent speakers. With regard to proportionality, Scheindlin reminded the audience that not all lawsuits revolve around corporations. Proportionality, she said, may come into play if a case involves a billion, or half a million, or $100,000, or $50,000 dollars. But proportionality may not be relevant in a civil rights case or a suit filed by an individual. "In the Southern District of New York we have many noncommerical cases — lots of civil rights and disability. I have a heart. I worry about those people," said Scheindlin. "It’s hard to quantify when it’s not about money."
She and her colleagues admonished that when it comes to e-discovery options, self-help is key. They reminded the audience that with current caseloads, judges simply aren’t as intimate with case details as the participating lawyers. "How am I supposed to conduct proportionality (hearings) — especially right up front?" demanded Scheindlin. "It’s very difficult to know how to vet things when I know little about the case and have so little time." The message, she said, is that proportionality really means that the lawyers need to talk to each other.
Asked Flynn, jumping aboard Scheindlin’s comments, "Why would anybody ask the judge — who knows the least about the case — to make the decisions?" As for cooperation, "all of these things articulate common sense. The judge’s ignorance can actually turn out to be helpful," he said.
Flynn also reported that he frequently observes "discovery paranoia — the urge to turn over the next rock, no matter the consequences. Proportionality is an attempt to get people to think about the [possible] costs of turning over the next rock."
He urged the attendees to focus on preservation from a business needs perspective, not a litigation risk management task. "Preservation should be for the business needs of the company, not litigation," said Flynn. "If you make preservation decisions based on what might be needed in litigation, you are going to have to save everything, and that’s not good for business."
Counsel, he said, need to change their habits. "Litigation holds should be seen as abnormal, not [routine]."
Francis declared that "preservation shouldn’t be as scary as some think it is." Lawyers "are making risk determinations throughout litigation, preservation is just one of those decisions," he said. Despite the few extreme cases, sanctions are "highly unlikely events," and most judges are reasonable, he asserted.
On the topic of cooperation, Francis said he urges parties to "identify the issues where they do not agree" to limit the scope of the litigation. "Cooperation itself can get out of control," he said. Manager your cooperation, he suggests. "Get goals in mind, set deadlines."
(For more from Francis, see, "Judicial Modesty: Not an Oxymoron.")
Scheindlin offered an observation that clearly warmed attendees’ hearts: "We may be moving to staying e-discovery pending a motion to dismiss," in order to "weed out cases that cannot proceed."
Also chiming into the discussion from San Jose was Richard Marcus, a professor at the University of California — Hastings College of the Law, who serves as the associate reporter of the U.S. Judicial Conference Advisory Committee on Civil Rules. Marcus noted that the discussions about the proposed rules are contentious, and that there are areas of intense disagreement on how to proceed.
Andrew Drake, assistant general counsel at Nationwide, spoke from Chicago. He and the other corporate counsel expressed concerns about sharing too much information too early. "I have a duty of loyalty to my client. We confront scope issues all the time. We would be deluding ourselves if we think that [discussions about scope] are not a priority."
Gregg Farano, Cisco’s director of legal services, based in San Francisco, substituted for Mark Chandler, senior vice president, general counsel, and secretary of Cisco Systems. Cisco is in the business of selling, not litigating, and wants to spend as little as necessary on litigation, Farano noted. "From a preservation point of view, we all would have liked to see a bright-line rule," but the proposed amendment, he said, "is a step in the right direction."
Roy Esnard, general counsel, Office of Legal Affairs, New York City Human Resources Administration, got the short end of the straw and didn’t have much time to comment; ditto for Deborah Miller, vice president, associate general counsel, who was able to spend a few minutes describing EDI and Oracle’s computer-assisted review study.
The last word goes to Scheindlin, who reminded the audience to keep things in perspective. "Discovery is where it’s at — only 1 percent of cases go to trial." •