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Idealistic musings about eDiscovery
With Halloween around the corner, let’s try something different. Here’s a little poll, in which I ask why you think attorneys (as a whole) have been reluctant to embrace eDiscovery.
You may choose more than one option (and the more cynical of you may choose to select all of them), but I especially welcome your comments explaining what you think are the root causes of the profession’s ambivalence (including – especially – if you think adoption and acceptance are proceeding at exactly the right pace).
I’ll use the highly-unscientific results as the basis for a future post. Thanks for taking the time to participate!
I had a job interview by telephone last week. The position’s job posting read as though it had been lifted from my career bucket list; everything I want my career to be, and all the experience I have obtained, meshed perfectly with the contents of the job description.
I knew, however, that there might be more here than meets the eye when, upon initial contact, the reviewer mentioned that in addition to everything listed on the job posting, this would be “a true sales position”. I love to evangelize and identify solutions. I HATE to “sell”.
I thought the interview went fairly well (at least, for purposes of demonstrating my expertise). The interviewer disagreed; he even told me so during the call, saying that he didn’t hear me steering the conversation forcefully enough to specific solutions that could be presented. (Never mind the fact that the list of solutions this company represents is outdated and incomplete on their website, so I wasn’t sure what to recommend. The message was clear: I wasn’t SELLING hard enough.)
Sales is push, it says I am ramming something, anything, down your throat lubricated with lunch whether you need it or not. Unpleasant. Consulting is pull, it says I believe I have something that will help you, let’s talk about it. Better.
I have been a salesman. I have been a consultant. I much prefer the latter, as I am working to provide solutions. A salesman will make his numbers for the month. A solution provider will be someone the client goes back to again and again, because the provider makes the client’s job easier and less expensive. It’s the difference between making a one-time sale, and building a true relationship.
The e-discovery industry needs to shed itself of its copying and scanning “salesy” origins and start behaving more like the advisory firms, albeit more creatively, more nimbly and without the hefty billing rates.
Nicely said, Damian. Nicely said indeed.
I highly recommend you read his message.
If you have done one of these published “Q&A” things before, as I have, you know that the author not only provides the A, but also the Q. The author gets to emphasize exactly what she wants to emphasize, in exactly the way she wants to emphasize it. That being said, Gabriela Baron reminds us of some important ethical points on the subject of technology-assisted review that need emphasizing: specifically, that the ethical attorney must develop at least some competence with the technology:
Comment 8 to ABA Model Rule of Professional Conduct 1.1 requires lawyers to ‘keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’ Lawyers need not become statisticians to meet this duty, but they must understand the technology well enough to oversee its proper use.
Her blog post is a pretty good, succinct summary, and one that bears being used to refresh our memory.
Courtesy K&L Gates, this recent opinion from USDC California in which the judge points out that you can’t very well conduct discovery with any sense of proportionality if you don’t know what the damages in question are:
[T]he court indicated that Plaintiff’s “tight-lipped” disclosures regarding damages, including indicating its desire for the defendant to wait for Plaintiff’s expert report, were “plainly insufficient.” The court went on to reason that “[e]ven if [Defendant] were willing to wait to find out what this case is worth—which it is not—the court still needs to know as it resolves the parties’ various discovery-related disputes. Proportionality is part and parcel of just about every discovery dispute.” (Emphasis added.)
Moral of the story: Modern discovery is not compatible with a plaintiff mindset of “We won’t specify an amount of damages sought, because then we can’t shortchange our potential recovery.”
Ralph Losey’s e-Discovery Team blog is often highly technical but always interesting. Ralph is one of the (if not the) leading theorist on search and prediction, and he excels at finding simple metaphors to explain his headache-inducing mathematical constructs. (Hey, I was a liberal arts major. I know my intellectual limits.)
In his latest post, Ralph compares Kroll Ontrack’s EDR software to a race car. The far-ranging post is worth a read, if only to get to his final paragraph, of which I agree with every syllable:
What passes as a good faith use of predictive coding by some law firms is a disgrace. Of course, if hide the ball is still your real game of choice, then all of the good software in the world will not make any difference. Keep breaking the law like that and someday you are bound to crash and burn.
I’m on vacation for the next couple of days, but here are some eDiscovery links I’m following and will have more to say about after I get back:
From Law.com: E-Discovery ‘Command’ Culture Must Collapse (I agree with this article completely; the time has come for collaboration rather than foot-stamping; see also Ralph Losey’s blog post We Are at the Dawn of a Golden Age of Justice)
From Richmond Journal of Law & Technology (via @ComplexD): Using Keyword Search Terms in E-Discovery and How They Relate to Issues of Responsiveness, Privilege, Evidence Standards and Rube Goldberg (I’ve skimmed this law review article, and look forward to spending more quality time with it on the plane tomorrow)
And two links re predictive tagging (or “Meaning Based Coding”, as my company’s marketing department likes to say): Companies That Outsource Face New Legal Risk (from Law.com), and Predictive Tagging: Finally, Some Judicial Cover (from LexisNexis, talking about Judge Peck’s article Search, Forward: Time for Computer-Assisted Coding).
Also, on Thursday, October 20, I’m speaking to the Houston chapter of Women in E-Discovery on the topic, “Predictive Coding: Ready for Prime Time?” Write to firstname.lastname@example.org if you want more information.
Yeah, I know. You think it will never happen to you.
You just go along about your merry way, litigating the way you’ve always done it. It hasn’t happened to you yet, after all.
Oh, you’ve heard about the cases, the tens of thousands of dollars in fines, the adverse inference sanctions that led to verdicts in the millions and even the billions. You’ve heard about Zubulake and Morgan Stanley and Creative Pipe and that ridiculous Qualcomm case (those attorneys did get to keep their law licenses after all, didn’t they?). You know those cases have absolutely nothing to do with you.
You practice mostly in state court. All those Federal Rules amendments, they apply to the other guys, the ones who spend all their time in motion practice. You’re a litigator, darn it. You don’t push paper, you get out there and work for a living. So it’s not going to happen to you.
Maybe you heard – maybe you didn’t – that the Texas Supreme Court pretty much adopted the growing case law governing electronically-stored information in federal courts to govern eDiscovery in Texas. In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) is the citation. But what difference does that make? It’s not going to affect you.
Or … is it?
You’ve certainly heard the dire warnings, from people like – well, like me. eDiscovery is here to stay, whether you like it or not. Eighty percent of a company’s data, and about 91 percent of all information created today, is in electronic format. The “smoking gun” that you’re going to be looking for, or that the other side is going to try to hide from you, is probably going be in an electronic file. Those who do not learn to surf the information wave are likely to be swamped by it.
You may have noted that criminal law cases, family law battles, employment discrimination matters, workers’ comp fights, wrongful death suits, and even the good ol’ slip-and-falls are beginning to turn on who sent which e-mail to whom, or what file got downloaded to which computer and when. But that’s those guys, you keep telling yourself. You simply don’t need to learn anything about eDiscovery. It can’t happen to you.
I thought “it” couldn’t happen to me, either. Get in a car accident? Me? No way! But I still fasten the seat belt every time I get into my car, because there’s not a victim in the world who thought it would happen to him. My father does the same thing. Every time he gets into his car, he fastens his seat belt.
A few years ago, that seatbelt saved him from certain death. It wasn’t his fault, it was the oncoming driver swerving into his lane. It couldn’t happen to him.
Except … it did.
How can I analogize my father’s brush with destiny to your refusal to learn anything about eDiscovery? I can do so because, even though it couldn’t happen to him, his preparation saved him when the unfathomable did happen. His injuries, thankfully, ended up being relatively minor.
You don’t have to become a computer expert to learn a little bit about eDiscovery. Heck, you survived college, three years of law school and six weeks of bar review. You can spend a little quality time on the Internet and learn a thing or two about eDiscovery. (You can use Google, right?) Guess what? Those web pages you’re surfing get cached on your computer’s hard drive, and might be discoverable as evidence. That’s eDiscovery.
Guess what else? If your client wants to pursue a claim against her employer, and writes you a privileged e-mail from her work computer, there’s a lot of disagreement over whether using company assets to send her personal e-mail waives her expectation of privacy, and therefore, your privilege. That’s eDiscovery, too.
Starting to hit a bit closer to home, is it?
eDiscovery is not just for the federal court practice lawyers. It’s not just for in-house counsel who have to manage their enterprise’s data flood. It’s not just for the big players, and it’s not just for the big-firm attorneys. eDiscovery affects every lawyer who litigates, and a lot of the ones who don’t. Knowing how to use it effectively to support your case can be a tremendous advantage. Not knowing how to comply with opposing counsel’s eDiscovery request can make you the next sanctions case that everyone seems to be talking about.
Still think it will never happen to you?
Can you afford to be wrong about that?
[Note: This was originally written as part of an article for a print publication for Texas lawyers, but was cut from the publication draft. Most references to the Texas Rules of Professional Conduct (TDRPC) can also be read to refer to one of the ABA Model Rules of Professional Conduct. – Gary]
It is certainly no surprise to any member of the Texas bar that TDRPC 1.04(a) emphasizes, “A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee[.]” This means that, in addition to charging clients reasonable fees for the work the attorneys do personally, they should not artificially inflate the fees passed through from, let’s say, a team of document review attorneys. These temporary attorneys typically work for an outplacement firm, and get paid $25-35 per hour for their time reviewing documents (increasingly, all electronic) as part of the first-pass document review. The outplacement firm marks up these fees in billing the law firm. Frequently, the law firm will then mark up the fees again in billing its client.
This raises the ethical question: How much can a firm ethically mark up the contract attorneys’ time? Most people would not consider a reasonable markup indefensible (after all, the law firm has overhead costs too). But how much is “reasonable”? Let’s presume that you hired an expert witness who charged your firm $15,000 for his services, but the firm billed the client for $50,000 for the expert. Most grievance committees wouldn’t blink at issuing sanctions for this egregious markup.
Similarly, firms mark up the fees of their staff attorneys. However, given that contract reviewers are not technically engaged in the practice of law when performing first-pass document review (they do not, after all, determine how the documents they review fit into the theory of the case), at what point does the firm’s markup cross the line into “an illegal or unconscionable fee”? One team of bloggers has argued that since contract review attorneys exercise no independent legal judgment, they are essentially “a piece of office equipment” and therefore, like charges for copies or courier fees, they should have their costs marked up only minimally.
Except in the context of attorney fee awards generally, courts haven’t yet wrestled with the ethical implications of contract review attorney markup. A malpractice case pending in L.A. Superior Court, J-M Mfg. Co., Inc. v. McDermott Will & Emery, will likely shed some light on this issue eventually. The plaintiff has sued the McDermott law firm claiming that they did not adequately supervised an outsourced document review project, and that as a result, some 3,900 privileged documents (out of about 250,000 total) were produced that should not have been. This matter, however, will take years to result in a written opinion. [Many thanks to Joe Howie for posting the Complaint.]
The notion of “reasonable fees” goes beyond merely marking up an outside reviewer’s bill. A trio of respected commentators – Patrick Oot, Anne Kershaw, and the aforementioned Joe Howie – have argued that in ESI collections, failure to utilize technology to consolidate duplicate records prior to review, thereby requiring multiple reviewers to look at exactly the same content to make exactly the same responsiveness and privilege decisions (each of whom must of course bill for their time separately), is by definition double-billing and, therefore, unethical. They wrote:
If ediscovery were a small part of litigation and duplicate consolidation had an imperceptibly small impact on ediscovery, the whole debate might be dismissed under the rationale of. However, the cost of ediscovery in general, and the cost of relevance and privilege reviews in particular, have been a major concern for years. There are no excuses for “not getting it” when it comes to ediscovery. Lawyers who bill hundreds of dollars an hour are implicitly promising a certain level of competence that would include the basic notion of consolidating duplicates.
These commentators go on to note, “[L]awyers are making representations to their adversaries and to the courts regarding the volume of ESI that has to be handled and the time required to review those records. Lawyers who don’t properly consolidate duplicates are inflating the time and cost required to review their productions.” Such behavior would violate TDRCP 4.01: “[A] lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person[.]” It might also run contrary to Comment 6 to TDRCP 1.04, noted in the first paragraph above: “[A] lawyer should not abuse a fee arrangement based primarily on hourly charges by using wasteful procedures.”