Welcome to Module 4-O.
Court Catches On To Feigned Attorney Cooperation and Client Pays the Consequences.
A decision by Magistrate Judge Karen M. Humphreys shows what can happen when you feign cooperation and try to snow opposing counsel and the court with exaggerated, unsubstantiated claims of review and production costs. Spieker v. Quest Cherokee, LLC, 2009 WL 2168892 (D.Kan. July 21, 2009). The actions of defense counsel in this case, whom the opinion makes out to be a real Eddie Haskell type (I personally have no idea), provides a text book example of the wrong way to oppose burdensome discovery.
In case you are not familiar with the great Eddie Haskell character from the classic TV show Leave It To Beaver, here is one of his signature lines:
Wally, if your dumb brother tags along, I’m gonna – oh, good afternoon, Mrs. Cleaver. I was just telling Wallace how pleasant it would be for Theodore to accompany us to the movies.
An Eddie Haskell lawyer type talks a good line of cooperation when in front of the judge, but it is just a charade; they are really just sneaking around and not cooperating at all. We have all run into opposing counsel like that. What is really irritating is when the judge falls for it and cannot see through the lies; even worse is when the judge thinks you are the one being uncooperative by trying to point out the truth. Still, the Eddie Haskell litigation strategy, if you can call it that, rarely works in the long run. The parent figures, the judges, eventually catch on and then you are cooked. This appears to be what happened in Spieker.
The Outing of Eddie Haskell and the Supposed Terrible Burden of Producing Email
Spieker v. Quest Cherokee considered plaintiffs’ renewed motion to compel production of email in a class action that had not yet been certified. The defendant defeated the motion the first time by convincing Judge Humphreys that even though he had cooperated, plaintiff’s demands for production of email were still too burdensome. The defendant successfully argued that it would cost up to $375,000 to produce the email requested. Defendant also argued that plaintiff had not explained “how the disputed ESI discovery is relevant to the issue of class certification.” Id. at *1. Only later did the judge discover that both statements were pure Eddie Haskell.
Let’s examine the last statement first, that the plaintiff failed to prove the relevance to class certification of the request for email. It turns out this was a total bush whack of plaintiff’s counsel who had good reason not to expect that argument. This probably explains why he was at a loss for words, even though the relevance was easily shown in the second motion. It was unexpected because plaintiff’s counsel and defendant’s counsel had entered into an agreement to conduct discovery on class certification and the merits at the same time. This key fact of a prior stipulation only became known to Judge Humphreys in the second motion. The judge was obviously not pleased as footnote three shows:
FN3. Defendant’s December 1, 2008 statement that discovery has proceeded by agreement of the parties on both class certification and the merits is troubling because defendant opposed plaintiffs’ original motion to compel, in part, on the argument that “none of this information appears relevant for class certification.” Defendant’s Response Brief, Doc. 45, p. 11. As defendant is well aware, the court denied plaintiffs’ earlier motion without prejudice based, in large part, on the issue of whether the ESI discovery was relevant to class certification. The inconsistencies between arguments presented to the court and statements to opposing counsel are disturbing.
Id. at *2.
Disturbing indeed! Eddie has been outed. But wait, there is still more. Defendant also told Judge Humphreys that it would cost a small fortune to find the email requested. She responded to this unsubstantiated claim by denying the first motion, but she also ordered the parties to meet to try to agree upon a reasonable search protocol. Judge Humphreys further suggested that the parties use the provisions of then new Rule 502, Federal Rules of Evidence, and enter into clawback agreements to reduce privilege review costs. The judge made this suggestion because defendant’s attorney represented in opposition to the first motion that the cost of privilege review alone of the email would be $250,000. Defense counsel also came up with another excuse to try to avoid production of email; his client was in the process of upgrading its computer system. This added more confusion and uncertainty to the pending email discovery.
I Can’t Do What You Want Me To Do Because I Just Bought New Tools Allowing Me To Do It
The attorneys met as ordered, but absolutely no progress was made. Surprised? Do you really think Eddie Haskell wanted to produce email or that he acted the same way to opposing counsel as he did to Judge Humphreys? Not likely. Instead, the attorney came up with a new, very creative excuse for not being able to search for and produce emails.
The client had just installed new software, the previously mentioned upgrades, and this software included new email search and retrieval capacities. Yes. You read that correctly. Defense counsel actually argued that his client could not find and produce email because the client now had new software designed to help them to find and produce email. This Haskellesque argument was based on the contention that the software was new, so new that the defendant’s IT people did not really know how to use it yet. He also argued that it would take time for the IT folks to do this work, they might have to work <gasp> nights and weekends to get the job done. Do you find this argument hard to believe? I know I did, so here is Judge Humphreys own words:
With respect to utilizing recently installed software and in-house IT staff, defendant argues that the new software is untested and in-house IT staff have “no internal experience in producing ESI in litigation.” Doc. 67, p. 15. Defendant also asserts that “this process would need to be completed on nights and weekends.” Id. Because of these uncertainties and additional logistical burdens, defendant argues that the cost of ESI production with in-house resources would be even greater than using an outside vendor.
Id. at *2.
The judge is no doubt seeing a pattern here. She does not buy any of this by the time of the second motion to compel. Judge Humphreys responds as follows:
*3 Defendant’s pessimistic arguments concerning its ability to generate the requested ESI materials in-house are not persuasive. First, defendant’s assertions that its IT employees have no experience producing discovery in litigation carries no weight. This court is aware of no case where a party has been excused from producing discovery because its employees “have not previously been asked to search for and/or produce discovery materials.” Moreover, the argument that the new software is “untested” is inconsistent with statements by Christopher Smith, defendant’s IT Manager. Smith avers that he has conducted “some limited searches” and that searches are possible if the email are “archived or converted.” Smith Affidavit, Doc. 67-3.Defendant’s estimated cost for generating ESI data responsive to plaintiffs’ production requests is greatly exaggerated.
How Much Will It Really Cost?
Judge Humphreys also found that defendant’s estimate of $250,000 to conduct a “privilege and relevance” review was excessive. Apparently this estimate was made with no backup substantiation beyond a “trust me judge this is what it will cost.” Not a very effective argument, especially after you have been outed as an Eddie Haskell. Oh yes, defense counsel did have one other argument to try to justify the alleged high cost, but it too is bizarre, to say the least.
He argued that the search terms are likely to produce many privileged and confidential emails. The search protocols are so broad and imprecise that extensive privilege review will be needed. He argued that the over-broad search rendered the protection offered by Rule 502 inadequate, that the cost of privilege review would still be too high. The argument itself is not inherently wrong, the alleged cost protections offered by Rule 502 are exaggerated, but of course with an argument like this, you would assume that the plaintiff was insisting on overly-broad search terms, correct? You would be wrong!
Judge Humphreys had already wisely decided that since it was defendant’s data the defendant would be in the best position to know how to search for and retrieve relevant emails. The defendants were free to design their own search protocols and make their own key word lists. Yet, defense counsel had the gall to argue that the search terms that he himself apparently dreamed up are so imprecise that it will cost $250,000 to screen out all of the false-positive privileged emails. You wonder how such an argument can be made with a straight face, but then you think of Eddie Haskell and the incredible things he would say to Mr. and Mrs. Cleaver.
Here is June Cleaver’s, I mean, Judge Humphreys’ reaction to this last argument:
For example, defendant argues that search terms will likely capture employee health care information that has no relevance to this case. The court agrees that employee health care information has no relevance to this case; however, the court is at a loss to understand why defendant would use search terms that would capture large volumes of employee health care information. As the court previously ruled, defendant is the party most familiar with its own records and responsible for preparing search requests that gather information responsive to plaintiffs’ discovery requests. In the unlikely event that employee health care information is captured and contained in the ESI made available to plaintiffs, the court will enter a protective order.
But wait, with an Eddie Haskell in the house, there is always still more. Lest you think I exaggerate, let’s hear about this last lulu directly from the judge:
The most disturbing aspect of defendant’s estimate of the “costs” to produce the requested ESI is that defendant fails to present any modification of its original estimate and persists with arguments that plaintiffs’ motion should be denied because (1) ESI discovery production is expensive, (2) other discovery materials have been produced, and (3) plaintiffs can secure the information more efficiently through interrogatories and Rule 30(b)(6) depositions. Clearly, there are multiple approaches to electronic discovery and alternatives for reducing costs and it appears that defendant asserts the highest estimates possible merely to support its argument that electronic discovery is unduly burdensome. Under the circumstances, the court concludes that defendant’s estimate of the cost to conduct a “privilege and relevance” review is greatly exaggerated.
I could go on and on describing the many excuses offered here as to why a thing as simple as email could not be produced, but it does get a bit tiring after a while. I suggest you read the case. The opinion of course concludes with the court granting the plaintiff’s motion to compel. The defendant was ordered to produce the email with no protection as to cost or burden. It did not have to turn out that way. Indeed, if defense counsel had been more of a Wally Cleaver type, protection of some sort would likely have been granted.
What Would Wally Cleaver Have Done?
Wally was a good kid – forthright – even if he was at times susceptible to the selfish schemes of the smarter Eddie Haskell. Wally did not lie and connive like his friend. Despite his weird hair-do, Wally would have cooperated in earnest with plaintiff’s counsel. His client would have been much better off for it.
First of all, the thing that really set Judge Humphreys off here was defense counsel’s cute actions concerning class certification discovery. He entered into an agreement with plaintiff’s counsel where the parties agreed to proceed with discovery on both class certification and the merits. Sometimes class actions defendants will object to that, and try to limit discovery to class certification issues unless and until such time as the class is certified. This attempt to so limit discovery by stages is, I am told, rarely successful, but still it was a concession made by defendants. No doubt defense counsel received some sort of reciprocal concessions, including their own right to conduct discovery into the merits, and so a deal was made.
If Wally had a made a deal you know he would have stood by it. He would not have thrown in a contrary relevance argument in a response memorandum. He would not claim that he did not have to show the other side his client’s email because the class had not yet been certified. This means he would not have upset Judge Humphreys, nor caused her to say in a public judicial opinion that “The inconsistencies between arguments presented to the court and statements to opposing counsel are disturbing.” You read between the lines. Did this presentation of switcheroo arguments help his client? Well, it did in the short run. The initial motion to compel was denied in large part because of this argument, but, as I said before, this kind of strategy rarely works in the long haul. Most judges are smart; they will catch on to insincere lawyers just as fast as Beaver’s parents caught on to Eddie.
Wally would also have handled the whole issue of costs in a different manner. If he did not know how to estimate a full production properly, he would have retained experts who did. Wally would have studied the email. He would know who the key players were and be transparent about that research to plaintiff’s counsel. He would run numerous trial searches on the key players; he would sample the email in numerous ways. Through an iterative process of trial and error, with further study and analysis, he would devise a reasonable search and production strategy. He would probably propose that the email search and production be done in stages.
Wally would begin with a narrow search designed to find the key emails and attachments from the key players in the most important time period. He would exclude certain emails from specified people or particular subjects without any review. There is, for example, no need for an executive’s daily emails to his children in college to be searched for discovery; the same comment applies to the company sports pools, or the ads still remaining in email. All emails to and from specified attorneys could also be excluded automatically. There would be both vertical and horizontal deduplication. There are many, many strategies available to reduce the amount of email that must actually be reviewed for privilege before production. He would consider them all and create the right formula for this particular case.
None of these search strategies seem to have been considered at all in Spieker. That is another thing that upset the judge. It is not like the defendant’s attorney tried and failed to come up with a viable search strategy. He apparently did not try at all for as Judge Humphreys said:
The most disturbing aspect of defendant’s estimate of the “costs” to produce the requested ESI is that defendant fails to present any modification of its original estimate … Clearly, there are multiple approaches to electronic discovery and alternatives for reducing costs and it appears that defendant asserts the highest estimates possible merely to support its argument that electronic discovery is unduly burdensome.
The court clearly thought that defense counsel had failed to devise a reasonable search strategy, one affordable to his client, yet still meeting the minimum needs for disclosure to plaintiffs. But there is another important error to note. He also failed to present credible evidence of the claimed review expanses. Apparently only a bald assertion was made that email review would cost $250,000. This has all of the appearances of a big round number pulled out of thin air.
If you are going to oppose a request for ESI on grounds of excessive cost and burden under Rule 26, then you have to do your home work and put your cards on the table. Any time you are challenged and must make a presentation to the court, you need to make a good presentation; you need to make full and accurate disclosure. You cannot just present a big ball park estimate based on a guesstimate or prior experience.
If Wally had been at the helm, he would have prepared a spreadsheet, probably several spreadsheets. They would break down and explain the projected production costs. Wally would have done the math. He would have done his homework. He would have calculated various review quantities under different search parameters. He would have calculated rates of review. He would have an idea of how many hours it would take to screen alternative data sets. Wally would present these alternative scenarios with detailed backups. He would make full disclosure of the assumptions. He would be prepared to provide affidavits or other sworn testimony to further substantiate the claims.
This is not an issue of honesty and forthrightness, this is a matter of skill. If Wally did not know how to do all of this, and very few people do, he would have found and retained an expert or experts who could help him to do this. He would know that he had a duty to his client to delegate out the issues that were beyond his capability, rather than muddle through and make a mess of it himself. Electronic discovery can be complicated. It often requires the unique skills of a specialist to be done right. You would not expect a divorce lawyer to handle a major anti-trust case, at least not without substantial help from anti-trust specialists. The same need for special skills applies to electronic discovery. The sooner litigators realize this, the better off their clients will be.
No article with a Leave it to Beaver theme would be complete without a word from The Beav himself, a/k/a Theodore Cleaver:
Beaver: How come Eddie’s such a creepy guy?
Wally: He works at it.
As long as there are Eddie Haskells in the legal profession we will all have to work as hard as a beaver to counter their tactics. <Groan – sorry> One of the most important ways to do that is to promote professionalism and ethics. In the field of discovery, this means promoting cooperation and a collaborative approach to technical issues, especially e-discovery search and production issues. Right now the best way to do that is to help get the word out to the Bench and Bar about The Sedona Conference Cooperation Proclamation. I suggest you start to cite to it in your memos, especially when faced with the Eddie Haskells of the world. Also, there are now at least twelve judicial opinions that cite to the Proclamation. All of these cases are also good citation material.
The movement towards a more cooperative model of discovery is an important trend. Look for The Sedona Conference to provide substantial new information on this in the coming months and years. If you have not already joined The Sedona Conference, you might want to do so now.
SUPPLEMENTAL READING: Read the case, watch the tv show. Take a break.
EXERCISE: Think about how to handle insincere opposing counsel. Their are tons of them out there. Try out a few techniques. Believe me, as a person who has lost his temper quite a few times as a young lawyer, that is not the best way to go. But don’t let yourself be walked over either. Stick up for your rights and the rights of your client. Call em on it. Cooperate, dont’ capitulate. It’s a fine line, but we all have to walk it.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015