Here’s a great article from Law Technology News on the judicial perspective on e-discovery as related at a LegalTech West plenary session. The speakers were two judges and their theme? Lawyers don’t know enough about technology.
From the Bench: New Views of E-Discovery at LegalTech
Michael Roach
Law Technology News
May 19, 2011
Image: Jim Arbogast / Digital Vision
What do judges see during electronic discovery when they see a motion to compel responded to by a paralegal for the organization — or a vendor? The answer is a far from flattering portrait — not of paralegals or of vendors — but of the legal team and the case they’re bringing before the court.
That question represented the first glimpse of “The View From the Bench — Why the Legal Industry Needs to Change and Embrace Technology,” the second plenary session at LegalTech West Coast 2011, presided over by U.S Magistrate Judges Suzanne H. Segal and Jay C. Gandhi, both of the Central District of California.
It would seem obvious that such a declaration should be written by a lawyer or an expert consultant. But the judges presented this document as the kind of unnecessary error they see far too often during the discovery process.
As Segal admitted: “Like all judges, we know very little about technology.” The onus of technological expertise is on the shoulders of those on the other side of the bench: when it comes to preservation and production, you’d better make it clear how you’ve met your e-discovery obligations and you’d better make it concise or face the consequences. Gandhi iterated, “I come from the world of private practice, so I firmly believe in sanctions.”
Segal recommended that rather than fall prey to preservation not acting fast enough and not acting broad enough, err on the side of caution if you want to impress the court. Craft a litigation hold in memo format — two pages that talk about the litigation and identify the appropriate people. And have a follow-up plan about what to do with the existing information.
The message that was hammered home again and again was get in there early. Gandhi asked any e-discovery consulants in the audience, “How many feel you were brought in too late?” A few hands went up. “You should have been brought in right at the start, as soon as the complaint gets filed.” It matters to the court, when looking at discovery, at what point in the process the consultants were brought in.
Moving back to the paralegal’s declaration, Gandhi pointed out the following statement, “We are currently preparing a privilege log regarding the withheld documents.” Segal said in her experience as a judge a motion to compel a privilege log or a more complete privilege log as something she’s seen again and again. Assign privilege as early as possible and detail does matter. Gandhi emphasized, “It doesn’t look good to judges if they look at a log and there’s barely any data there.”
On the subject of showing the court a careful keyword search was conducted, Segal offered as a negative example a motion over keyword search in which the moving party provided a hundred keywords, the responding party had five. Gandhi asked whether anyone was negotiating keyword agreements, in which both the plaintiffs and defendants cooperate. Rather than sacrificing your legal strategy, Gandhi assured the defendant or producing party, “If you reach an agreement — then the plaintiffs ask for more — judges are loath to overturn it.”
While demonstrating specific knowledge pleases the court, Gandhi warned, “Don’t harass each other with technology.” He offered an example from his days in private practice, when he received an eight-page description of electronically stored information, with prodding questions about the specific software the producing party would be using. Bullying doesn’t impress judges.
Segal had an interesting observation on clawback agreements: She had never had a motion over a clawback. Not, she believes, because lawyers are not abusing them, they’re not using them: “Lawyers are too nervous to turn over documents without doing a privilege review” — it might frighten their client.
Has technology radically changed discovery? Both Segal and Gandhi concur that the principles of discovery remain the same. The primary difference, in their view, with EDD, is that the volume and the cost has grown exponentially.
As a remedy to the one-sided nature of much of the presentation, as the session ended, both judges invited vendors, lawyers, and IT to approach the panel and tell them what they’re doing wrong. As Gandhi put it, “Feel free to come attack us.”
