About two weeks ago, Roland Paquette raised an interesting question in the Electronic Discovery group on LinkedIn that gave me pause. After all, people like me become obsessed with trying to get the legal profession to embrace technology and employ best practices and ethics with respect to eDiscovery. But … what about those of our colleagues who have learned enough about handling ESI to turn the eDiscovery process itself against their opponent?
“Cooperation does not conflict with the advancement of their clients’ interests – it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.” – The Sedona Conference Cooperation Proclamation, July 2008
Are you folks finding adversarial parties are mixing up the electronic discovery more as a tactic? Increased number of duplicate images, faulty OCR?
I have cases where the OCR text file appears to have been edited by deleting large segments. It is particularly noticeable when the missing text is also associated with critical documents. Although everything loads OK in Concordance, it isn’t until review time when you begin to notice thousands of documents can’t be searched in Concordance because the text file is incomplete.
The concept of attorneys skirting the boundaries of discovery ethics is nothing new. Heck, if it weren’t for those efforts, the amount of existing published eDiscovery jurisprudence would have been cut in half. We can hark back to pre-Zubulake days, when the standard operating procedure for discovery production was to print, or “blow back”, all responsive e-mails and computer files (and frequently, a lot of the non-responsive ones as well) to paper. For the uncooperative litigator, this tactic presented several “advantages”:
It meant that none of that pesky metadata would be produced.
It kept the native text from being extracted or easily searched, leaving the receiving party to pay for error-laden optical character recognition (OCR) to make the content searchable.
It successfully kept out any Excel formulas to indicate how the numbers on the spreadsheet might have been calculated (and also successfully withheld any data in hidden columns or rows, or even data that had been saved as white text on white background).
It forced the receiving party to conduct a linear review of the documents: start with Document One, Page One, and slog forward through each banker’s box full of paper in turn.
It occasionally caused opposing counsel to miss valuable trial preparation time due to hospitalization for excessive paper cuts. (Okay, I made that last one up.)
“It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by ‘gamesmanship’ or ‘hiding the ball,’ to no practical effect.” – The Sedona Conference Cooperation Proclamation
Then came Enron. Suddenly the opposite tactic, which Enron tried to use, entered the headlines: Swamp the regulatory investigators with not just the responsive ESI files, but millions of non-responsive ones too (hiding the needles in big honkin’ haystacks). This was not a new tactic, of course; back when dinosaurs roamed the earth and I was practicing law, the “Rambo litigation” method then in vogue in Texas practically required each party to bury the other in data, trying to make the cost of review so prohibitive that their opponent would gladly settle rather than complete discovery (if they didn’t go bankrupt first).
Now, with eDiscovery governed by the FRCP and by a growing (but not growing-quickly-enough) number of state rules of civil procedure, the courts have spoken: PLAY NICE. Produce what you’re supposed to produce, don’t produce what you’re not supposed to produce, and comply with the ESI rules in “good faith” (a term which no one has satisfactorily been able to define, other than “I know it when I see it”).
The only problem: Attorneys aren’t playing nice. An alarming number of counsel are continuing to practice law the way they always have, in which they believe they can only do their job if they win at any cost, and in which the slightest whiff of cooperation appears to them to be a complete failure of zealous advocacy.
So Roland raises an excellent point, even if his specific situation is due to an honest mistake: What happens when the other party is apparently producing everything they’re supposed to produce, except that they do it in a way, and in such a volume, that the absence of critical metadata can’t be easily spotted? What if the situation Roland faces isn’t the result of the service bureau’s poor QC process, but is instead something more sinister (read: intentional)?
“Lawyers frequently treat discovery conferences as perfunctory obligations. They may fail to recognize or act on opportunities to make discovery easier, less costly, and more productive. New lawyers may not yet have developed cooperative advocacy skills, and senior lawyers may cling to a long-held ‘hide the ball’ mentality.” – The Sedona Conference Cooperation Proclamation
First, let’s face facts: It may not be the service bureau’s fault. Having worked for one, I can tell you that the only thing more challenging than generating a well-formed and complete load file to go with an ESI production volume, is ingesting that load file into the receiving party’s review platform. The problem may not be with the production at all, but with the technical savvy of the people ingesting the production on behalf of the receiving party (or the technical shortcomings of the software itself).
Second, there are a lot of valid reasons NOT to produce certain types metadata (see my previous post and discussion in the comments with eDiscovery thought leader Craig Ball). Suffice it to say that if the state bar associations that have spoken to the issue can’t agree on the ethics of metadata production, there must be compelling arguments both for and against it.
But what about when someone IS trying to game the system? What about when someone produces, say, 10 million documents, but has intentionally left searchable text and metadata out for some of the more significant documents? Is sampling sufficient to discover the error … and what if it’s not? What if Roland’s post portends a return to that “Rambo litigation” mentality that we should all loathe?
And let’s expand this hypothetical to include the ethical implications. If the files have been produced as agreed by the parties, would this “selective omission” from the load file take the production into the realm of bad faith? Where would that tipping point be? What if the producing party didn’t know about the omission (after all, unless they create the production volume in-house, they rarely get to review it before it gets sent to opposing counsel)? What if the problem isn’t on the producing party’s end at all, but with the technical incompetence of the receiving party? And what if the omission is due to no one’s incompetence or omission, but due to the technical limitations of the production file formats themselves?
I firmly believe in the ethical obligation of lawyers to cooperate in discovery, making the thrust of our “adversarial” justice system advocacy and zealous representation, rather than simply trying to lay waste to those who dare oppose us. I get no pleasure in telling audiences that The Sedona Conference’s Cooperation Proclamation is mocked by some lawyers as an idealistic, unrealistic, let’s-all-join-hands-and-sing-around-the-campfire position paper, rather than as the call to sanity that it was meant to be. My experience has taught me that attorneys who are used to gaming the system, will continue to game the system, unless and until they are personally smacked around with sanctions by an angry judge (and even that may not be enough to stop them).
So to me, this begs a question. Which should we worry about more: lawyers who can’t (or won’t) get with the program with respect to eDiscovery, or lawyers who get with the program for the express purpose of exploiting the ignorance of their opponents? Discuss.