by Lee Gesmer | Feb 5, 2008 | Courts, Technology
Judges need to keep learning too, and a major source of education for them is the Federal Judicial Center, an organization dedicated to judicial education.
In fact, the FJC site is pretty cool. For example, here is a page that provides the biography of every federal judge (all courts, from District Court to Supreme Court), since 1789. Here is the bio of Judge Andrew A. Caffrey (deceased), who made me sweat quite a bit during this 37 day trial back in the early 1980s.
In any event, the FJC publishes various learning materials for judges, and last year they published a short work titled, Managing Discovery of Electronic Information: A Pocket Guide for Judges, authored by Judge Barbara J. Rothstein and former U.S. Magistrate Ronald J. Hedges.
As I’ve noted in the past, electronically stored information (or ESI, as its known), presents enormous challenges to lawyers and judges, almost all of whom were educated long before the last decade’s explosion in ESI. This Pocket Guide is important reading for lawyers practicing in the federal courts since it’s reasonable to assume that (a) the federal judge before whom you’re appearing probably has a copy sitting on the corner of his or her desk, gratis from the FJC, and (b) it may constitute the entirety, or close to it, of what the judge knows about ESI.
by Lee Gesmer | Jan 16, 2008 | Courts, Procedure
If you’re in the middle of a trial, don’t tell the judge that you’ve settled the case unless you absolutely, positively mean it. Amazon fell into this trap in its recent litigation with Basis Technology, a Massachusetts linguistics software company. On the third day of trial over a dispute arising out of a contractual relationship the parties informed the judge that the case had been settled. The judge ended the trial, but the settlement agreement that the parties then attempted to negotiate for signature foundered over the calculation of Amazon’s minority stock ownership in Basis, an important element of the settlement. After the dispute was brought to the attention of the trial judge she examined the negotiations and held that the intention of the parties had been to settle. She ruled that all of the material terms of the settlement had been agreed upon, and that Amazon’s objection to the stock calculation was a “post hoc objection” insufficient to derail the settlement. The trial judge refused to reopen the trial, and entered judgment on the terms sought by Basis.
Amazon appealed the judgment entered by the trial court, but the Appeals Court rejected the appeal. In addition to affirming the reasoning of the trial court judge, the Appeals Court emphasized an important principle, long recognized by many courts: when you report a case settled during trial, the court will bend over backwards to enforce the settlement, even if the terms are only oral.This case doesn’t create new law, or even apply a novel legal principle, but it serves as a reminder to be extremely careful, when reporting a settlement during trial, that in fact you have every important aspect of the settlement nailed down, and in writing. Amazon, or it’s counsel, forgot this, and paid the price.
You can read the full decision here.
by Lee Gesmer | Jan 12, 2008 | Antitrust, Courts, Patents
When I was a new lawyer, working at Howrey in Washington, D.C, the firm ‘s client, Litton Industries, was sanctioned in the amount of $10 million for discovery misconduct – the failure to produce relevant documents during discovery. But for the sanction, Litton would have been entitled to an award of its costs and attorneys fees in the litigation, which it had won. I suspect, however, that Litton (and Howrey) took this with good graces – Litton had been awarded $277 million in damages. See Litton Systems, Inc. v. AT&T, 91 F.R.D. 574 (S.D. N.Y 1981), aff’d, 700 F.2d 785 (2nd Cir. 1983).
Ironically, the documents in question (which were produced very late but before trial) were ruled inadmissible at trial, and therefore the defendant suffered no prejudice as a result of the late production.
Even though I was not involved in this case while at Howrey, this painful episode for the firm and the lawyers directly involved left a lasting memory upon my young and impressionable mind, and I recalled it as I read about the pickle in which a group of California lawyers have found themselves in the patent case Qualcomm v. Broadcom.
In the Qualcomm case a key issue was whether Qualcomm, which accused Broadcom of patent infringement, had participated in the Joint Video Team (“JVT”), a standards-setting body. Broadcom aggresively sought discovery from Qualcomm on its involvement in JVT, under the theory that had Qualcomm participated in this process, it would have been barred from suing companies which used the Qualcomm technology that was adopted as part of the standard.
Qualcomm denied participation throughout discovery, but Broadcom had a few documents which gave it reason to believe that Qualcomm had participated in JVT. However, while preparing one of their witnesses during trial Qualcomm’s attorneys searched the witnesses’ laptop computer for the first time, and discovered 21 emails that contradicted Qualcomm’s position in the case, but which had not been produced. Even then the Qualcomm lawyers tried to avoid producing these documents (questioning this witness in such a way that she would not disclose their existence), and only on cross-examination of the witness by Broadcom did the truth begin to emerge. To make a long story short, Qualcomm’s case disintegrated during trial, and after trial (which Qualcomm lost), Qualcomm performed a search of its employee’s email archives, only to discover that there were more than 46,000 documents, totalling over 300,000 pages, that Qualcomm had failed to produce.
One can only imagine the feelings of Qualcomm’s outside counsel as this problem was uncovered and the full extent of the problem emerged. At first they tried to coverup the nondisclosure, and when they finally admitted the true facts the lawyers knew that this problem would be pinned on them as well as on their client. Lawyers are responsible, to some extent, for their client’s failure to provide discovery, and the ball and chain fell heavily on Qualcomm’s outside counsel. In fact, the judge found that Qualcomm had intentionally withheld the documents, that this could not have occurred without assistance or deliberate ignorance by its outside attorneys, and that significant sanctions were appropriate. The outside lawyers were hamstrung in their ability to defend their actions, since Qualcomm would not waive the attorney-client privilege.
The judge ordered Qualcomm to pay more than $8.5 million to Broadcom, which amount represented Broadcom’s attorney’s fees and expenses. He also referred several of the Qualcomm lawyers to the California State Bar, for possible sanctions for ethical violations.
What does this case say to lawyers representing clients in the future? In today’s business environment every comany has electronic evidence. In the “old days” a lawyer had only to search her clients’ file cabinets and warehouses to find relevant evidence. In fact, in the Litton/AT&T case discussed above, the hidden evidence was sitting in the desk drawer of an AT&T employee during the entire case. Now, an outside lawyer knows that failing to properly review a client’s electronic files can result not only in financial sanctions against the client, but in serious sanctions against the lawyer as well. This case emphasizes the reality that lawyers must carefully oversee their clients’ electronic discovery, that they cannot rely exclusively on their clients’ assurances, and that they must be alert to any inconsistencies or hints that full production of evidence may not be taking place.
by Lee Gesmer | Nov 29, 2007 | Copyright, Courts
One of the many oddities of the legal profession is that judges have to take truly bizarre allegations seriously, and use detailed legal logic to dismiss them. This is like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival. You see this most often in pro se lawsuits brought by prison inmates who are challenging their convictions or treatment during incarceration. You see it a lot less often in the rarified world of intellectual property litigation. However, a case decided earlier this year is a good example of this in just that context.
Harding Earley (the Harding firm) is a law firm ouside Philadelphia. It defended a client in a case alleging trade secret misapropriation and trademark infringment, brought by Healthcare Advocates, Inc. However, by doing so the Harding firm itself attracted the wrath of Healthcare Advocates, and was sued by Healthcare for copyright infringment and various related claims. This suit garnered some attention at the time it was filed, and I wrote about it here, in a blog entry titled The Wayback Machine and the DMCA. Rather than repeat the basic facts here, I refer you to the original article.
The case has now been decided by the Federal District Court for the Eastern District of Pennsylvania (Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey). The issues presented, and their resolution by the court, were as follows:
First, did the Harding firm infringe the copyrights of Healthcare, by printing screen shots of Healthcare’s website during its investigation of the case? Not surprisingly, the Court held that the law firm fell within the copyright “fair use” exception by printing these documents and using them to defend its client. the Court: “It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringment was not allowed to view and copy publicly available material, especially material that was alleged to have infringed.”
Second, did the Harding firm destroy relevant evidence by not preserving the temporary cache files that presumably were created on its computers when it viewed the web pages? Noting that the temporary files were probably deleted within days of the viewing, and that the Harding firm was not put on notice of a claim until months after the viewing, the Court held that the Harding firm could not be guilty of destroying relevant evidence. To put this in perspective, Healthcare’s argument was that as soon as the law firm viewed these files it should have anticipated legal claims against it, and shut down the computers used to preserve the temporary files. Judge for yourself the merits of this argument.
Third, did the Harding firm violate the Digital Millenium Copyright Act by reviewing old versions of Healthcare’s website on the Wayback Machine? As I explained in the original article, the Wayback Machine (described in detail by Wikipedia here) began archiving web pages in 1996. Since web sites frequently change, the Wayback Machine takes billions of “snapshots” of website pages and preserves them. Needless to say, this is a great resources for lawyers.
However, if you own a web site and you don’t want to be archived by the Wayback Machine, you can opt out. The Wayback Machine permits website administrators to use the voluntary SRE (Standard for Robot Exclusion) to identify files or directories that cannot be “crawled” and indexed. Exclusion is accomplished by inserting a file called robots.txt on a web server. According to Internet.org this not only prospectively excludes a site from being crawled, but will “exclude any historical pages from the Wayback Machine.”
It turns out that this method is not foolproof. On the fateful day that the Harding firm accessed Healthcare’s old web pages on the Wayback Machine, the Wayback servers malfunctioned, and certain pages that carried the robots.txt file were not blocked from access. This, however, was invisible to the Harding firm – they had no hint that they were accessing the pages against the wishes of Healthcare, and due only to a technical malfunction.
These facts didn’t deter Healthcare, however, which accused the lawfirm of violating the Digital Millenium Copyright Act (DMCA). Section 1201(a) of the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a [copyright] work protected under this title.” Healthcare claimed that robots.txt is a technological measure that controls access to the archived copies of its web site, and that the Harding Earley law firm circumvented that measure.
If this argument doesn’t make much sense to you (how could Harding have circumvented a technological measure if it simply accessed the Wayback Machine site, and had no idea that the Wayback Machine site was malfunctioning?), it also didn’t make much sense to the judge, who dismissed this claim.
Fourth, and lastly, did the Harding firm violate the Computer Fraud and Abuse Act (CFAA), a federal law that makes it illegal to access a computer without authorization, or in excess of authorization? Healthcare’s position was that the Harding’s firm exceeded authorized access, despite the fact that it was the Wayback Machine’s servers that malfunctioned and permitted that access. The Court dismissed this claim, noting that the Harding firm did nothing more than view web pages delivered from a public website in the manner the website was designed to deliver the pages.
The extraordinary thing about this decision, to my mind, is the time, effort and expense (the Harding firm spent over $170,000 in fees and expenses) that went into defending against allegations that should (in this writer’s opinion) never have been brought in the first place, or at least dismissed once the facts were clarified for Healthcare. Instead, the case dragged on for two years; the docket sheet has around 80 entries; both sides hired computer experts, and in the end the case was dismissed on summary judgment, in a decision where the judge spent almost 40 pages analyzing each claim made by Healthcare and dismissing it only after rigorous and in-depth analysis which went, in my opinion, far beyond the call of duty.
Oh, I almost forgot to mention – Healthcare has filed an appeal.
by Lee Gesmer | Nov 26, 2007 | Courts
Recently, I wrote an entry describing how ScotusBlog was making available online every brief filed in the Supreme Court (where the Court has accepted cert.). Now, the Massachusetts Supreme Judicial Court is making all briefs filed in its cases availabe on the SJC website. These resources are a windfall to practitioners, who can study the research and arguments made by other attorneys, rather than tackling difficult legal issues cold. These resources (unimaginable in the pre-Internet age) can, if used properly, make practitioners both more efficient and more sophisticated in evaluating effective legal arguments.
by Lee Gesmer | Nov 14, 2007 | Courts, Patents
This quote, attributed to General Phillip Sheridan in 1868, describes how many patent defendants feel about Texas, and particularly Marshall, Texas, which has become a patent litigation black hole, sucking in unwilling defendants from around the nation.
A blog, titled the Patent Troll Tracker, closely follows events in Marshall. Here is an abbreviated excerpt from a recent post concerning patent litigation in Marshall:
This is really the year of the patent troll. Last year, approximately 6,000 defendants were sued nationwide in about 2,800 patent cases. This year, the 6,000th defendant was sued sometime in early October. With the number of cases up nationwide probably 5% over last year, we’re still projected for at least a 30% increase in the number of defendants sued. More on that data in a later post.
Why? It’s because of the numerous multi-defendant patent litigation cases being brought by non-practicing entities and patent trolls in the Eastern District of Texas. . . .
Think about it. When else in our nation’s history have we experienced a 30+% increase in the number of patent claims in one year?
Now think about why we are currently experiencing this extreme uptick in patent litigation. It’s simple: patents, at least in the eyes of the market, are overvalued right now. Damages are being awarded in patent cases without basis in reality, and out of proportion to the actual value of the invention. . . . Settlements are being squeezed by plaintiffs filing primarily in plaintiff-friendly jurisdictions like the Eastern District of Texas, where, despite the efforts of some to paint it to the contrary, the juries typically side with the patentee, and the judges rarely grant summary judgment, and when they do, it’s on the eve of trial. . . .
Do you want more evidence that the Eastern District of Texas is fueling this large increase? Right now, there have been over 1,250 defendants sued in the district through the first 10 months of 2007 . . . . Extrapolating, there will likely be 1,500 defendants sued in the Eastern District of Texas this year. That’s as many as were sued in all of 1990, in the entire United States.
by Lee Gesmer | Oct 16, 2007 | Courts, Litigation
Courts, Litigation. Back in the early 1980s, when I was new to the Massachusetts Bar, there was an effort by the organized bar to codify the rules of evidence. That effort failed, and to this day the rules of evidence are a confusing patchwork of common law and legislative enactment. The “go to” source for the law of evidence has been, in the memory of almost all living Massachusetts attorneys, the Handbook of Massachusetts Evidence (8th Ed. 2006), by the former Chief Judge of the Supreme Judicial Court, Paul Liacos, and currently edited by Mark Brodin and Michael Avery. (The previous editions of this work were published in 1940, 1948, 1956, 1967 (when Justice Liacos took over), 1981 and 1993). However, the long-dead phoenix of evidence codification may be rising from the ashes, albeit in a slightly different form. In 2006 the SJC established an advisory committee to develop a “Guide” to evidence (not to be confused with “Rules” of evidence), and that Guide is now in its proposed form. The draft Massachusetts Guide to Evidence is available here (a 226 page pdf file).
Not surprisingly, the Guide makes unabashed and extensive use of the Proposed Rules of Evidence which, although never formally adopted, have been cited in Liacos and to trial courts since their “non-adoption” in 1982. Go figure.
by Lee Gesmer | Jul 25, 2007 | Courts
Justia.com is a very cool new legal research site that I stumbled upon. What I particularly like is its “front end” for research in the Case Management/Electronic Case Files (ECF) system, which has become extremely comprehensive since most federal district courts now mandate electronic filing.
One part of the site, Federal District Court Filings and Dockets, gives much easier access to the ECF system than the ECF front end, which I’ve always found to be awkward. Justia allows you to look (for example) for all patent cases filed between any two dates, either nationally or in a particular district. Ultimately, Justia dumps you into the ECF system, and you have to be a paid subscriber to access PDF files at eight cents a page.
The site has a number of other interesting areas to explore, such as a Supreme Court center and a searchable collection of legal blogs and podcasts.
by Lee Gesmer | Jul 19, 2007 | Courts
Andy Updegrove provided me with an article by Roger C. Cramton, Professor Emeritus at Cornell Law School, which Andy (a Cornell Law alum) thought was particularly interesting, and I thought it was worth sharing here. The article, entitled Reforming the Court: How Long is Too Long (published in a Cornell Law alumni magazine) is based on the introduction to a book by Professor Cramton and Professor Paul Carrington of Duke Law School, entitled Reforming the Court: Term Limits for Supreme Court Justices.
Of course, the titles of the book and article state the authors’ thesis. The article, based on the introduction to the book, is thought provoking. Here are a few “facts” taken from the article:
- Between 1970 and today the average length of service on the Supreme Court has grown from 15 years to 26 years
- During that time the average age at which a Justice retires from the Court has increased from 68 to 79
- Statistically speaking, John Roberts, who was appointed at age 53, has a life expectancy of 30 years, and could be sitting as Chief Justice in 2037, or even much later
- Before the recent vacancies created by the death of Chief Justice Rehnquist at age 80 and the retirement of Justice O’Connor at the tender age of 75, the Court’s membership had been unchanged for 11 years
The idea behind the book and article is that in 1789, when life under the U.S. Constitution began, life expectancy at age 50 was half what it is today; the Founders never anticipated that Justices would sit so long, or that the Court could remain unchanged for so long. The authors propose what they think is a reasonable solution: limit any one USSC Justice’s term to life or 18 years, whichever is shorter (no, they didn’t actually express it that way, my joke). After 18 years, an aspiring Justice who wants to keep working can stay busy riding the circuits on the U.S. Courts of Appeals.
In the United States, most people seem to be anxious to retire (relatively) young and enjoy life. Studies have shown that by age 65 fewer than 18% of males are in the work force.Why is Justice Stevens still sitting at age 86 (32 years after being appointed by Gerald Ford)?
Professors Cramton and Carrington attribute this to the increasingly cushy nature of the job. Consider: each Justice writes only 8 or 9 opinions a year (the total number of decisions is down by about half in the last 20 years, and down much more from early in the 20th Century), has three highly qualified and motivated law clerks to help with this workload, a six week winter break and a three month summer recess, free world travel (paid for by various organizations), professional accolades, and enormous political power in our three-headed system of government. And, of course, no real “boss” to speak of. The other Justices can yell at you, but they can’t fire you. Of course, because USSC Justices don’t try cases they don’t suffer the stresses of the courtroom, which can be significant on both lawyers and judges.
Should this change?I think it should. I agree that Supreme Court Justices should not spend 30 or 40 years, into their 80s (and with modern medical technology, maybe their 90s or longer, who knows?), in such a position of power and influence.Is a Constitutional Amendment that would put the equivalent of term limits on Supreme Court Justices in the cards? Don’t hold your breath (or delay your retirement).And, I’d hate to be the lawyer that has to defend any legal attack on such an amendment, should it make it to the Supreme Court.
Footnote: Of course, this “nine old men” business has had its turn before, as far back as 1937. John Grisham made great fun of nonagenarian USSC Justices in his 1992 book, The Pelican Brief. (“He was ninety-one, paralyzed, strapped in a wheelchair and hooked to oxygen. His second stroke seven years ago had almost finished him off, but Abraham Rosenberg was still alive, and even with tubes in his nose his legal stick was bigger than the other eight. . . . Rosenberg insisted on writing his own opinions . . . slow work, but with a lifetime appointment, who cared about time?”).
by Lee Gesmer | Dec 1, 2006 | Courts, Litigation
At long last, the highly anticipated amendments to the new federal rules of civil procedure are here. The federal court system has amended its rules of procedure to address electronic discovery, aka “e-discovery”. The amendments became effective on December 1, 2006.
Unfortunately, this news has been greeted with yawns from many attorneys who believe this is just another run-of-the-mill procedural change. Far from it; the e-discovery revolution represented by this rules change – and it is a revolution – is anything but ordinary, and the courts (which have been warming up to this issue for some time) have warned that its effects will be profound and far-reaching.
The rule changes themselves may not appear earth-shattering, but they change the standard for both lawyers and clients as it relates to the exchange and management of information in litigation. Since the federal court system has provided summaries of the changes (see rules 16, 26, 33, 34, 37 and 45), we won’t go into fine detail. However, there are a few changes worth highlighting, including the obligations placed on litigants and the courts to confront e-discovery at the outset of a case (see rules 16 and 26), the definitional changes designed to address “electronically stored information” (see rules 26 and 34), and the “safe harbor” exception which protects parties from sanctions if data is lost during the routine, good-faith operation of their computer system (see rule 37).
What is truly special about e-discovery, however, is not really the letter of the law. What all lawyers should know is that courts and the new federal rules have placed a significant part of the responsibility for the location, preservation and production of litigants’ electronic data on their attorneys. One need only review the following examples to get the picture:
- Zubulake v. UBS Warburg LLC, (S.D.N.Y. July 20, 2004) – “Counsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents. . . Once a ‘litigation hold’ is in place, a party and her counsel must make certain that all sources of potentially relevant information are identified and placed ‘on hold,’ . . . To do this, counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the ‘key players’ in the litigation, in order to understand how they stored information. . . Once a party and her counsel have identified all of the sources of potentially relevant information, they are under a duty to retain that information . . . and to produce information responsive to the opposing party’s requests. . . . There are thus a number of steps that counsel should take to ensure compliance with the preservation obligation. While these precautions may not be enough (or may be too much) in some cases, they are designed to promote the continued preservation of potentially relevant information in the typical case. First, counsel must issue a ‘litigation hold’ at the outset of litigation or whenever litigation is reasonably anticipated. The litigation hold should be periodically re-issued so that new employees are aware of it, and so that it is fresh in the minds of all employees. Second, counsel should communicate directly with the ‘key players’ in the litigation, i.e., the people identified in a party’s initial disclosure and any subsequent supplementation thereto. Because these ‘key players’ are the ’employees likely to have relevant information’, it is particularly important that the preservation duty be communicated clearly to them. As with the litigation hold, the key players should be periodically reminded that the preservation duty is still in place. Finally, counsel should instruct all employees to produce electronic copies of their relevant active files. Counsel must also make sure that all backup media which the party is required to retain is identified and stored in a safe place.”
- Heng Chan v. Triple 8 Palace, (S.D.N.Y. Aug. 11, 2005) – “The preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction. . . Where the client is a business, its managers, in turn, are responsible for conveying to the employees the requirements for preserving evidence. . . Thus, once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents. When the failure to meet these obligations results in the destruction of evidence, sanctions are warranted. And, though the nature of the sanction depends in part on the state of mind of the destroyer, some remedy may be appropriate even where the destruction is merely negligent.”
Until now, issues related to document preservation fell squarely on the client who, after all, typically has exclusive control over their own documents and information. For various reasons, including the dynamic nature of electronic data and modern computer systems as well as several high-profile e-discovery catastrophes involving large corporations, the courts are now are placing affirmative and stringent obligations on attorneys. And in-house attorneys should note that these obligations do not end with outside litigation counsel but expressly include in-house counsel and appear to reach any attorney who advises their clients about litigation or document retention.
The new federal rules require attorneys to confer about their clients’ electronic data and make “electronically stored information” completely discoverable. Therefore, the amended federal rules now require lawyers to investigate and understand their client’s computer systems and data and ensure that the relevant data is preserved and then produced in accordance with their discovery obligations. Gone are the days when lawyers could tell a federal judge that they don’t understand all of this technical computer stuff.
While these e-discovery obligations must be taken seriously, there is no reason to feel overwhelmed. In fact, if you’ve read this far then you should already be able to identify many of the key issues and pitfalls. Moreover, today there are numerous legal decisions highlighting the mistakes of others from which we can all learn a tremendous amount. There is also available a wealth of publications, vendors and other resources focusing on e-discovery. These resources – which were practically nonexistent just 3-4 years ago – now make it possible for lawyers, including the non-specialist, to understand and keep up with this evolving issue.
by Lee Gesmer | Nov 9, 2006 | Courts
You no longer have to wait to read the oral argument in a Supreme Court case that has been argued. The Supremes now make the full transcript of oral argument available on a same day basis. This is very cool for the .0001 percent of the population that loves this stuff.
Yes, I know this is not a current picture, but the more current ones just don’t do the trick.
by Lee Gesmer | Oct 26, 2006 | Courts, Litigation, Technology
The best aspect of law school is the subordination of math.
Anon
________
The schematic displayed above (click for a blow up in pdf format) is a simplified illustration of a corporate network which Microsoft provided to the Federal Rules Committee in connection with proceedings on electronic evidence. It was intended to illustrate a generic corporate computer network.
If you are a lawyer and this seems like an alien concept that no lawyer should ever be required to understand, you’re not alone. Lets face it – like most stereotypes, the old joke that lawyers go to law school to avoid math and technology contains a large element of truth.
So, it’s not hard to sense the anxiety emanating from the hallways of the nation’s law offices as the electronic discovery tsunami picks up speed. Yes, there’s a new technology boom, but it’s not the kind that sent clients flocking to their lawyers for legal representation in the 1990s. Many lawyers in their 50s and 60s can barely find the caps lock key on a computer keyboard, much less learn the intricacies of “IT“.
Nevertheless, every day emails and brochures arrive announcing seminars and warning that the era of electronic data discovery (EDD) has finally, truly arrived. Luddite lawyers are warned that –
- 99% of all documents created today are in electronic form.
- Changes to the federal rules of civil procedure that will take effect on December 1st will require lawyers to be far more familiar with client information systems than in the past, and to work cooperatively with opposing counsel to preserve, retrieve and produce electronic data.
- Ignorance of the law (or of technology) is not a defense (!) The poster child for just how bad this can get is the Morgan Stanley case in Florida, where the trial judge ordered the jury to draw an adverse inference based on Morgan Stanley’s failure to turn over electronic documents, leading to a $600 million plus jury verdict against Morgan Stanley.
Of course, the law being what it is, the full implications of all of this are impossible to forsee. And the more you think about it, the worse it gets. How do you locate relevant electronic data in your client’s network? How do you review electronic data for relevance, work product and privilege? How do you designate individual documents “confidential” or “attorney’s eyes only” when they are part of a massive data file? How do you capture metadata? (What is metadata? Helpful hint: “metadata is information about information”). How do you capture and review data that uses software systems the client has abandoned (a surprisingly common problem)? How do you ensure that attachments accompany their original emails?
If you think the last question doesn’t present a problem, our firm can tell you about an opposing party that produced a massive Outlook email file that had been converted to an ASCII text file, and in the process had all the attachments stripped away. It took quite a bit of explaining on our part for the opposing lawyer to even understand the problem. Then, rather than incur the cost of reviewing this mass of material, the opposing party produced its entire email database for a several year period, disclosing not only irrelevant, privileged and technical client information, but personal medical records of employees.
Of course, what’s bad for the lawyers and courts is always good for the experts. The demand for computer forensic experts that can address these questions (and a hundred more), as well as take potshots at the opposing party’s EDD, will undoubtedly flourish. Kroll has already staked out a big piece of this business, but there is room for countless smaller players as the industry evolves. Courts and lawyers can’t possibly be expected to understand all of this stuff themselves. In the end, the losers will be the lawyers and law firms that can’t master this process, and the clients who are forced to pay for it.
