Waiting for Georgetown
by Dennis Kiker, Esq., Director, Professional Services, Fios Inc.
Last night was cold, rainy, and rather gloomy here in Washington, D.C. It was also Veteran’s Day, so sensible people had chosen to join their government colleagues and stay home or retire early for the day. So what else would someone facing a two-day e-discovery marathon choose to do on such a night? Of course. Attend an e-discovery roundtable dinner, what else? And it was great.
Really, it was great. Here’s why: As you might expect when a group voluntarily gathers on Veteran’s Day in the rain and gloom to talk about e-discovery, the discussion turned to cooperation. We were happily basking in the warm rays of collegiality and collaboration, listening to Bill Butterfield and David Cross, two people for whom the Cooperation Proclamation merely describes their everyday practice, and suddenly reality intervened. It intervened in the person of someone who, for the sake of privacy, I will call “Turtleneck Guy.” Turtleneck Guy (TG) is a 34-year veteran trial lawyer from Pennsylvania who handled a variety of commercial cases, most involving smaller companies. He assumes in every case that the opposing party will hide the relevant information at all costs, and, therefore, insists in every case on getting “everything” the opposing party has. Of course, most of his cases involve small LLCs with three members and limited data. But the prospect of making the same demand of a Fortune 50 giant didn’t phase TG at all. Here we are, e-discovery experts, Sedona Conference members, Cooperation Proclamation promoters, and TG was telling us, point-blank, that he would not accept key word searches or sampling or anything short of production of “everything.” It was very refreshing to inject a dose of real-world litigiousness into our e-discovery fireside chat. This is, after all, the world that most of us live in when we are not fortunate enough to be on the opposite side of the table from Bill or David.
Ultimately, though, TG confirmed that it all boils down to trust. He said that if someone handed him the production and told him it was everything related to the case, he would take them at face value, unless he had reason to distrust them. Cooperation, whether between opposing parties, between client and counsel, or between vendor and client, requires a baseline of trust. Absent judicial compulsion, parties will cooperate only to the extent that they believe that they will be treated fairly by the opposing party. The fact is, however, that the requisite degree of trust is often not present in litigation, particularly where the lawyers involved do not know one another, which is increasingly the case with national litigation.
So, what is the answer? After all, he didn’t say it, but I suspect TG prefers the cases where he can receive the production and accept on faith that he got what he needs. I think all of us are looking for ways to cooperate without having to turn over “everything.” One possible solution is in the methodology of initial cooperation. Utilizing early evidence assessment in the form of systematic data sampling and review allows both parties to develop a mutual understanding of the types of data available, and the language and terms used by the key custodians, leading to more focused iterative collections and analysis. Collaboratively sampling, reviewing and analyzing data allows both parties to operate on a level playing field without incurring excessive costs to develop a better understanding of the data at issue and jointly develop a more reasonable approach to further discovery.
The other thing that came out of our discussion was the increasing appearance of, and need for, specialists in this field. While all attorneys should have a general understanding of e-discovery and the issues involved, it is not practical, and probably not desirable, for all lawyers to become expert in all the technical minutiae associated with the identification, preservation, collection, review and production of ESI. Just as I would not go to a patent attorney to prepare a complex estate plan, so to I should not expect to go to just any experienced trial attorney and obtain advice on issues as complex and difficult as those that can arise in an case involving e-discovery. One of our guests drew the analogy of an auto mechanic. Whereas, thirty years ago, we would not have expected our mechanic to be familiar with and competent in the use of computer diagnostics, today, it is a minimum requirement for a mechanic. By the same token, even auto mechanics specialize, with people focusing on transmissions or emissions systems as those systems have become ever more complex. Just as specialization has taken place elsewhere in the law, so too is it inevitable and required in the area of e-discovery.
Now, on to the conference…
Filed under Discerning e-Discovery.