By Dennis Kennedy, Evan Schaeffer and Tom Mighell
Dennis Kennedy (DK): We welcome you to the first issue of the Thinking E-Discovery column. I’m pleased to be joined by well-known lawyer bloggers and writers Tom Mighell and Evan Schaeffer. We’ll be bringing you a regular conversation on electronic discovery topics, with a focus on practical issues and information you can use. We’ll focus more on the technology and practice aspects of electronic discovery and, for the most part, leave the discussion of case law and rules to other commentators. We will concentrate on bringing you practical information that will help you in your daily work.
Let’s get started. We wanted to start with a survey of the landscape for electronic discovery in the summer of 2005. I know that I have been saying for several years, as have many others, that electronic discovery is the hottest area of legal technology. You cannot hear a presentation about electronic discovery today without hearing the statistic that 93% of documents created today will never be printed on paper. From the Sedona Conference to almost every CLE conference, you will hear discussion of electronic discovery. Yet, I consistently hear estimates that only a very, very small percentage of cases today involve any electronic discovery at all. Evan, you practice in Madison County, Illinois, one of the best-known jurisdictions for litigation in the United States. What’s your sense of how frequently lawyers are using electronic discovery and what are some of the trends you are seeing?
Evan Schaeffer (ES): As with all jurisdictions in large metropolitan areas, there’s plenty of large-scale litigation going on in Madison County. In class actions and mass-tort cases, there is usually no alternative but to embark on extensive electronic discovery. In garden-variety litigation such as family law and auto litigation, electronic discovery is not nearly so pervasive. It’s definitely true, as you observe, that many lawyers have simply not gotten the message about electronic discovery, and fail even to do the basics, such as sending out a preservation letter at the beginning of a case. I have the sense that this is changing. Even if the party seeking information does not specifically define a document request to include electronic information, the producing party often interprets the request that way. It means that many lawyers are receiving information that has been generated electronically-though often in paper form-even if they did not specifically plan to receive it. The next time around, these lawyers will be a little better educated.
Tom Mighell (TM): I agree that here in Dallas we are seeing quite a bit of electronic discovery, but primarily with the larger firms and big cases. I can safely say that our firm, however, has not had a single case where the opponent’s discovery requests required us to hire an electronic discovery vendor. In fact, electronic discovery is very rare in the insurance defense business; when I receive a discovery request, I usually don’t have to think about an electronic component, because either 1) it doesn’t exist, or 2) it is so small that my client can simply print out the requested documents (which they often do) or send them to me by e-mail or CD (which they rarely do). There certainly is a disconnect, but it often has to do with the area of law – although I’m still amazed at how many commercial litigators are unaware or ambivalent about electronic discovery.
(DK): The non-lawyers I talk with about electronic discovery are shocked that lawyers are trying cases without looking at the other side’s email. I must admit that I find it difficult to think of a case where you could categorically say that you don’t want to see email. I have little doubt that we will soon see a stronger push from clients to make electronic discovery more common. We’ll talk about why lawyers have been so reluctant to move toward electronic discovery in future columns, but lawyers are starting to feel pressure from clients, judges and vendors to move to a more modern approach to discovery.
(ES): Clients pushing their lawyers towards electronic discovery-it’s a sorry image for a profession which is paid to educate its clients, rather than the other way around. It’s certainly true, however, that when it comes to electronic information, clients are often much more sophisticated than their lawyers are, especially when it comes to their own data. What lawyers need to do is to come to grips with the gaps in their own knowledge, have to courage to admit the gaps are there, then seek to fill those gaps, whether by using an appropriate vendor or seeking frank assistance from their clients.
(TM): Dennis, I think you need to modify your sentence: “.I find it difficult to think of a commercial case where you could categorically say that you don’t want to see e-mail.” In the personal injury defense cases that I handle, e-mail communications are rarely (if ever) an issue. Clients are definitely pushing us in technological matters, but more from the back-end; electronic billing and invoicing, status reports, moving towards a paperless filing system, etc. But many of our clients (and by far the non-corporate clients) remain largely unsophisticated about electronic discovery.
(DK): In the coming months, we will probably learn that I’m unwilling to accept your modification, Tom, but we’ll leave that subject for another day. I’ve been a little surprised to see how willing non-lawyers are to point the finger directly at lawyers and paper-based approaches to litigation as the source of the problem. I don’t think many lawyers realize how the combination of the legendary power of the Internet to “route around” inefficiencies and the forces and frustrations now at play is creating a situation where people are looking at ways to minimize the role that lawyers play in this process. I’m constantly struck by the disconnect between lawyers and their views of electronic discovery and the comments of clients who are disturbed by the failure of their lawyers to consider the business impact of current discovery methods.
(ES): If lawyers don’t wake up, they just might be replaced. I recently experienced an example of what you’re talking about—a disconnect between a lawyer who was my opposing counsel and his client. I was seeking information that I was sure the defendant stored electronically, but my opposing counsel continued to deny the information existed, based on the fact that his client was denying it existed. When I took a deposition on the point, however, it seemed that my opposing counsel was simply confused about how his client was storing the data. As a result, the lawyer confused the client too, and neither dug deeply enough into the discovery requests. The information was there all along, and actually tended to exonerate the client. It would have been interesting to see what the client had to say to the lawyer after the deposition ended—months of legal wrangling had seemingly been unnecessary, though I bet the client had paid dearly for it.
(TM): I definitely think that burden falls more heavily on the lawyer, because in my experience the client rarely pays attention to the specific wording of the requests and accompanying instructions – clients rely on the attorney to tell them what they are being asked to produce. A lawyer needs to know the right questions to ask the client, and that includes having an understanding of the types of information that is stored electronically.
(DK): Here’s an example I heard recently. A company was using a law firm that took a “resist everything” approach to electronic discovery request. The company faced a discovery request that it knew would (1) take almost a year to comply with, (2) cost a couple of million dollars, and (3) have zero likelihood of producing relevant information. In part because the parties did not work together to deal with electronic discovery issues, the judge was not persuaded by the company’s arguments and ordered the company to undertake the electronic discovery effort. It produced the results the company expected. The company’s new approach is to require its law firms to cooperate with opposing parties to streamline the electronic discovery process and take reasonable approaches. Lawyers need to be ready to hear clients calling more shots and looking hard at litigation budgets.
(ES): Your story is certainly a testament to the way the “resist everything” approach can backfire. On the other hand, if the law firm was right that there was a “zero likelihood” of producing relevant information, then the resistance might have been warranted. Do you think the moral of your story might have more to do with judges than with lawyers? In order to reach a correct result, judges need to be educated about electronic discovery too. In the confines of any particular case, it’s the parties that bear the responsibility of educating the judge. They won’t be able to do it when their attempts at education are overshadowed by their own nasty bickering about discovery.
(TM): Actually, a story like that underscores the need for some sort of standard procedure for courts to follow. The reality is that judges will be even less likely than lawyers to take the time to learn the basics of electronic discovery, and my sense is that any attempt by lawyers to educate the judge in a specific case will result in significantly different information given to the judge from case to case, depending on the knowledge of the individual lawyer. A set of standardized definitions, instructions, and procedures will greatly relieve the pressures on both lawyers and judges to find the right result.
(DK): At the same time, judges are increasingly frustrated by the failure of lawyers to work together to resolve electronic discovery issues on their own. Too often, judges feel that lawyers are dumping electronic discovery issues on judges. I’ve heard judges talk about using special masters or their own experts to deal with electronic discovery questions. Not surprisingly, some judges are simply telling litigants to use formats and technologies that are most convenient for the judges. I’m not critical of these judges – they have been put into a position where there they must do something.
(ES): When parties cannot resolve a discovery dispute themselves, then yes, judges are put into a position of having to make a decision. I don’t know that I feel sorry for the judges about that-after all, that’s their job. The trouble comes when judges are forced to waste time making decisions about matters that the parties should be able to resolve themselves. When the parties in this situation also know that running to the judge involves the risk of having to live with a bad decision brought on by the judge’s own ignorance of electronic discovery, the lawyers should be doubly criticized. But ignorant judges should be criticized too. As a lawyer urging other lawyers to get educated about electronic discovery, I’d certainly urge the same for judges. There’s no excuse not to know the basics.
(TM): Agreed. All judges need to know the basics of electronic discovery, to make decisions on those disputes that make it to court. However, I’m a big believer in working things out with opposing counsel, involving the judge only as a last resort. Parties to a lawsuit can usually agree to anything, and the judge will approve it – when you turn your dispute over to the judge, you lose your ability to control your case. That’s why it’s important that lawyers should get together and narrow the universe of documents being requested. The proposed federal e-discovery rules will require parties to confer regarding the form of production and preservation of electronic data at the discovery-planning conference early on, so that will be a good start.
(DK): Let’s switch gears. The electronic discovery tools that are now available are nothing less than amazing. However, there are many of these tools now available, a quickly growing number of electronic discovery vendors, and it is very confusing to understand the different types of tools, let alone to navigate your way to making good choices. It’s clear that there is no “one-stop shop” and it has become important for lawyers to learn both the categories of tools and the number of options within each category. Do not think for a second that this is an easy task.
(ES): When I think about how quickly technology has evolved in the past twenty years, and how it continues to evolve, it makes sense that the process of educating oneself about electronic discovery is a daunting task. The message is that lawyers must firmly commit to the task. Meanwhile, they should not rely on their own ability to educate themselves. Though the ability to teach oneself is a core part of a lawyer’s education, electronic discovery is one of the exceptions. Lawyers who resist the need to get educated do it at their peril.
(TM): The incredible proliferation of e-discovery vendors has, in my view, generated a lot of confusion about what’s being offered. It seems like every copy service these days is advertising its “electronic discovery” services, and I receive weekly requests for vendors to come and show me their “new” electronic discovery product. They all look the same. In contrast, there are a few companies out there that are producing some very powerful tools, but it’s hard for an uneducated lawyer to cut through all the clutter to find these vendors. Many of these companies are offering (as a part of their sales pitch) to train attorneys on electronic discovery basics, with CLE credit to boot; this is a great idea.
(DK): If there is one key thing that we have learned at this point, it is that “project management” should be the focus of your efforts. The traditional partner/associate/paralegal model goes out the window when it comes to electronic discovery. Lawyers are finding that they need to work with a team that includes other professionals, vendors, service providers and, increasingly, client representatives. These are peers, not subordinates, and have their own subject matter expertise, authority and strengths. Lawyers absolutely must look to learn project management skills of a completely different nature than to which they have become accustomed. Learning these skills may be more difficult than learning the technology.
(ES): Do we need to state the obvious-that lawyers are rarely good managers? I see evidence of it practically every day. Nonetheless, even in the revised management model that you propose, there must be someone who has the final say-so about cost and legal strategy, and who will accept responsibility if the team fails. Lawyers who are already in this position-and they know who they are-have even a greater responsibility not to abdicate their duties and responsibilities by failing to educate themselves about the importance of electronic discovery.
(TM): Dennis, I thought this was a column about e-discovery, and now you’re suggesting a completely new way of practicing law? Evan’s right – as a lawyer, why would I want to be a manager? My time is much better spent billing hours for my firm. Getting lawyers to realize the value of project management is definitely important, but it’s going to take some time; let’s tackle educating attorneys about electronic discovery in the meantime.
(DK): I really like the idea of finding new ways to practice law, but I’ll get back to electronic discovery. In a sense, we are seeing the fruit of efforts to make reasonable rules and otherwise address electronic discovery issues. I defer to Tom and Evan on rules and procedures, but I have two observations that give me cause for concern. First, I’ve heard some convincing arguments that the principles that have arisen out of the Zubulake case might not be as helpful as people might hope because the Zubulake facts are not as commonplace as people initially thought. In other words, what made sense in the Zubulake scenario might not make sense in many other cases. Second, I’m always concerned that rules and cases lag so far behind where technology is and where it is going that rules quickly become all but impossible to apply in the circumstances you actually face.
(ES): Certainly parties who want to avoid the principles of Zubulake will try to distinguish the facts of the case from their own situations. But even so, certain aspects Zubulake are taking root in the growing lore of electronic discovery. One of its lessons is that parties who overreach by seeking electronic discovery without a clear sense of what they are looking for will bear a correspondingly greater portion of the cost. It seems like a fair policy to me. When changes in technology cast doubt on the need for such a policy-or other policies implicit in the Zubulake ruling-it will be up to the parties to bring this to a court’s attention. In the meantime, rules and cases definitely lag, but I’m an optimist on this point: the rules and cases will catch up.
(TM): I don’t think this is specific to technology; rules and cases are always lagging. Zubulake (and the four or five other appellate opinions on this issue) will certainly not cover every situation, but for now they provide some good guidelines on how these issues are going to play out. As the technology develops, no doubt new opinions and rules will follow to supplement this body of knowledge.
(DK): As I’ve suggested earlier, I’m consistently hearing people say that electronic discovery is becoming a serious problem and that the cause of the problem is lawyers, law firms and increasingly “antiquated” paper-based approaches to discovery. There is an increasing discontent and frustration with the perceived unwillingness of lawyers to address the technology issues and the business consequences of our current approaches. In the summer of 2005, I find that lawyers remain far too passive in their approach to electronic discovery and, as a result, run the risk of losing the leadership position in electronic discovery. Many lawyers also run the risk of losing clients who are much less willing to tolerate “lawyering as usual” in electronic discovery. At a minimum, you will want to stay tuned to our future columns and visit the DiscoveryResources.org site on a regular basis.
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Dennis Kennedy (dmk@denniskennedy.com) is a well-known legal technology expert and technology lawyer based in St. Louis, Missouri. An award-winning author, he has written extensively on electronic discovery and other legal technology topics and also speaks frequently on these matters. His website (www.denniskennedy.com) and blog are highly-regarded resources.
Evan Schaeffer (eschaeffer@riverbendlaw.com) is a class action and mass torts lawyer based in the St. Louis metropolitan area. His firm is Schaeffer & Lamere, P.C. Schaeffer’s weblogs are The Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground.
Tom Mighell (tmighell@swbell.net) is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson, P.C. in Dallas. He is the author of the Internet Legal Research Weekly, and the Internet research weblog Inter Alia, an Internet legal research weblog.
Filed under From the Experts.