Welcome to Module 4-D.
Inspector Clouseau and the Insights of Judge Facciola and Malcolm Gladwell Suggest a Bright Future for e-Discovery Lawyers
The fundamental problem facing the legal profession today is the search for truth and justice in a digital world. A world where the complexity and volume of electronic information is overwhelming and leaves most lawyers looking like Inspector Clouseau. Two new opinions illustrate the point. One is by Judge Andrew J. Peck in New York. It is already fairly well-known, but deserves closer examination. William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009) (S.D.N.Y., 2009). I point out this case to an attorney somewhere in the country most every week. The other is by Judge Andrea M. Simonton in Miami. It is not well known, but is exemplary of a common scenario in litigation today. Siemens Aktiengesellschaft v. Jutai 661 Equipamentos Electronicos, Ltda., 2009 WL 800143 (S.D.Fla. March 25, 2009). These cases show that lawyers from New York to Miami are falling behind their clients’ technologies. Indeed, all over the world most lawyers today lack the essential skills needed to find documentary evidence, which today is all digital, not paper.
Both cases also show that judges are tired of dealing with Clouseau antics; they are fed up with the incompetence, needless bickering and attacks. These cases, and the many others like it that come out almost daily now, should be a wake up call for the legal profession to get their act together. If your clients do not fire you, the judges may.
New York, New York
Many New York City lawyers and law firms based in the City claim to be the best in the country. They have high billing rates to prove it. Almost all of the major corporations retain them for their most important legal needs and pay those rates, so they must believe it too. Frankly, until recently, so did I. We all thought that New York lawyers were among the best in the country and certainly were no buffoons. Apparently, however, when it comes to actually finding the documentary evidence needed to prove or defend a case, we were sorely mistaken. They are as clueless as any other group of lawyers in America. In fact, according to at least one judge who sees them everyday, New York lawyers are asleep at the wheel when it comes to the fundamental problem of search. Here is how Judge Peck puts it in Gross:
This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.
You might think that Gross was just a small case with inexperienced counsel. You would be wrong. It was big-time construction litigation: a multi-million dollar dispute over alleged defects and delay in the construction of the Bronx Criminal Court Complex. Still, these otherwise excellent lawyers botched up e-discovery pretty badly and so provoked the judge’s ire. For instance, they subpoenaed a non-party, a large construction company, and demanded production of its ESI by using thousands of different search terms, including words such as: “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” and “electrical.” This is just the kind of idiotic approach you might expect from Inspector Clouseau, although he probably would have added the word “hamburger.” Of course, the construction company objected, pointing out the obvious, that if these keywords were used, they would have to produce virtually all of their data for all construction projects. They did not, however, suggest any alternative.
It is hard to imagine a request for production more over-broad than this one. But, a close second to this absurd request does quickly come to mind. In re Fannie Mae Securities Litigation, _F.3d_, 2009 WL 215282009 (D.C. App. Jan. 6, 2009). In Fannie Mae, the 400 keywords requested by Clouseau lawyers in Washington D.C. resulted in production by a non-party of 80% of all its email at a cost of $6,000,000 (9% of its total annual budget). The main difference between the New York lawyers approach in Gross, and that of the government lawyers approach in Fannie Mae, is that the New Yorkers objected and refused to do it, whereas the government lawyers in D.C. went ahead and ran the search and paid for it, and then they objected. Score one for New York.
Judge Peck makes the following observation about the failure of the attorneys in Gross to conduct a proper search:
*2 This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails. Prior decisions from Magistrate Judges in the Baltimore-Washington Beltway have warned counsel of this problem, but the message has not gotten through to the Bar in this District.
In defense of New York lawyers, the message apparently has not been heard by D.C. lawyers either, as the Fannie Mae case shows.
Judge Peck then goes on to discuss his general agreement with the need for competence and expertise by lawyers in search. He refrains from deciding in this case whether attorneys should always be required to retain experts to consult on search, but notes approvingly Judge Facciola’s and Judge Grimm’s observation that this may sometimes be appropriate. Judge Peck also opines that competence alone is not enough, that counsel must also learn to cooperate:
Of course, the best solution in the entire area of electronic discovery is cooperation among counsel. This Court strongly endorses The Sedona Conference Cooperation Proclamation (available at http://www.TheSedonaConference.org).
Judge Peck then concludes his opinion with the following good advice for a more learned, less Clouseau-like approach.
*3 Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar – even those lawyers who did not come of age in the computer era – understand this.
Lest those of us outside of New York and D.C. start to feel too smug, all the evidence suggests that Clouseau is alive and well and leading e-discovery searches throughout the country, not to mention Great Britain and France too. Siemens is just another case in point. Siemens Aktiengesellschaft v. Jutai 661 Equipamentos Electronicos, Ltda., 2009 WL 800143 (S.D.Fla. March 25, 2009). This is a trademark infringement action and the opinion concerns the defendants’ requests for production. At a hearing, Judge Simonton determined that the RFPs were overbroad as drafted. She thus issued a preliminary oral ruling from the bench directing the parties to confer and submit a proposed final order. This is where the cooperative behavior by the attorneys should have begun. Of course, it takes two to tango and for whatever reason, that was just not happening here. The parties instead filed separate reports prompting this opinion.
Judge Simonton reminded the parties that in the prior hearing, she had already determined that the defendants’ RFPs were overbroad and held that they:
… must be limited to prevent imposing an undue burden of production on Siemens. In light of the short time frame for production and the fact that Siemens’ counsel was not aware of Siemens’ electronic record-keeping policies, the undersigned directed counsel to confer with each other, as well as Siemens’ corporate representative, to fashion an electronic discovery plan. Among other things, the undersigned contemplated that electronic discovery would be limited to particular Siemens employees who were involved with matters pertaining to BenQ, Jutai and Caribe; and, the undersigned suggested that the parties agree to relevant search terms that Siemens should use to search its archives of electronic records. The parties’ competing proposed orders fail to explain their inability to compromise on an electronic discovery plan, nor do they set forth the bases of their disagreements. (footnotes omitted)
As stated on the record at the March 19, 2009 hearing, Siemens is required to produce electronically-stored information that is responsive to Request Nos. 1, 2, 4, 6, 7 and 11. However, Siemens is not required to conduct an unduly burdensome comprehensive search of its electronic archives. Rather, the parties are ordered to confer for the purpose of establishing reasonable limitations on the scope of Siemens’ obligation to produce responsive electronically-stored information, which may include restricting the search to certain Siemens employees and agreeing upon a list of search terms.
Id. at *3.
At the end of the opinion, the Court then concludes with the following order:
Plaintiff shall produce responsive electronically-stored information after consulting with Defendant’s counsel for the purpose of establishing reasonable parameters to govern Plaintiff’s search of its electronic archives.
Id. at *4.
Now the parties are specifically directed to establish “reasonable parameters to govern Plaintiff’s search of its electronic archives.” If they do not agree, the next step is likely to be another hearing. No doubt both sides will argue that their proposed search protocol is reasonable and the other side’s is not. The judge will then have to pick one search protocol over another, or perhaps design a third combining features of both. If this happens, Judge Simonton may be forced to consider the issue deferred by Judge Peck, namely whether resolution of this dispute requires expert testimony under Rule 702 of the Federal Rules of Evidence. This was suggested by Judge Facciola in United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008):
Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.
Judge Facciola’s decision has been criticized by many as over-kill, that lawyers should be able to do this on their own and the retention of more experts will just unnecessarily drive up the cost of litigation. But what choice do judges have when the lawyers appearing before them have not got a clue? Until lawyers heed the wake up call of Judge Peck and many others, myself included, and gain the competence needed to find and handle evidence, they will have to hire consultants to do it for them. The actions of bungling Clouseaus in the courtroom are simply too expensive and too time consuming.
Judge Facciola’s Thoughts on Clouseau-like Bungling and Avoidance of e-Discovery
An interview of Judge Facciola by Karl Schieneman as part of his ESI Bytes series is worthy of study. This is where you can also find my interview with Judge Shira Scheindlin on e-discovery education. Judge Facciola, who retired in late 2014, has seen some of the best Washington D.C. attorneys in his federal courtroom every day. He is also a student of e-discovery and the impact of the technology revolution upon the practice of law. He compares the impact of the digitization of evidence upon litigation to that of the impact of the enactment of the first Internal Revenue Code in 1939 upon Estates and Trusts practice. It totally changes everything. Here are Judge Facciola’s words:
I remember I read somewhere, I don’t know if it was Boras Bittiger or Edwin Griswald said that the passage of the Internal Revenue Code was the most significant development in the law of estates and trust – since the creation of the trust. I think that what the point of that is whatever you thought you knew about estates and trust, before the Internal Revenue Code, you had to learn a whole new area in order to be an affective lawyer.
He went on to observe that some lawyers were making the transition, but most were not. Here is Judge Facciola addressing the issue of the discrepancy in competence and the decision of many just to avoid e-discovery entirely:
But is there a discrepancy? Yeah. Is it narrowing? No, I’m afraid it isn’t. It’s getting bigger. In other words, there are people who have opted out of this situation. I think Tom agrees (that) they’re heading for trouble. They’re just heading for trouble and it’s very, very scary in terms of what disciplinary authorities may do to them. If they blow a case because they just don’t know what they’re doing.
Joining him in this interview was attorney Tom R. French from Fort Collins, Colorado, who handled the well-known e-discovery case: Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC,2007 WL 684001 (D.Colo. 2007).
Tom French: Yeah, I don’t know how you can opt out of electronic discovery. It’s like saying, “I’m gonna opt out of the rules of evidence,” or, “I don’t want the rule against perpetuities to be involved because it’s too hard.” That doesn’t work. You just can’t do that.
Judge Facciola: … As Tom has said, there’s nothing any of us can do about this. As Tom just said, “Well, let’s not have any electronic discovery in this case.” Pal, Jiffy Lube has a computer, and there’s nothing you and I can do about that. So, I can’t imagine that 100 years ago lawyers were saying, “Gee, I don’t want to learn any of that stuff about airplanes, because God, I don’t know anything about airplanes,” or 200 years ago, “I don’t know anything about railroads.” One of the great things about being a lawyer and one of the reasons society looks to us for leadership in this area is that we have shown a remarkable ability to adapt the law to the changing society around us. That’s what we’re supposed to be doing. How do we get an exemption from that? There is no answer. There is no magic wand that Tom nor I have that we’re going to push over you and tomorrow you’re going to walk into the office and understand this stuff. You’re going to have to get the books out. You’re going to have to talk to people. You’re going to have to educate yourself in every way. I don’t know, and that’s just as true of judges as it is of lawyers.
Judge Facciola is pointing out the same thing here that Malcom Gladwell reported in his new book Outliers called the 10,000 hour rule. There is no shortcut. You have got to pay your dues or hire somebody else who has.
Gladwell’s Outliers and the Future of e-Discovery
I know that most lawyers and law firms today find e-discovery distasteful. Most lawyers still think that computer work is beneath them, mere tech-stuff that real lawyers do not do. Malcolm Gladwell, in his new book Outliers: The Story of Success, explains that this is the kind of white-shoe law firm attitude that allowed Skadden Arps to quickly rise to power in New York. According to Gladwell, in the 1960s and 1970s the big established firms found hostile-take-over securities work distasteful. They did not like litigation much either. Joe Flom of the then second tier Jewish law firm of Skadden Arps loved that kind of work. Joe was the son of a Jewish garment worker, and did not go to an Ivy League school. Although plenty smart, he had no chance of getting into the big WASP firms of the 1940s. By the 1970s a new kind of hostile-take-over securities work was developing in the legal profession. Joe Flom loved that kind of tough elbows work, but the blue chip WASP firms did not want to have anything to do with it. It was distasteful and beneath them. So they referred it at first to Joe Flom and Skadden Arps. Lets those lawyers handle such dirty work. They did, and Joe Flom worked hard and got very good at it.
As luck would have it, hostile takeover work started to be critical to the development of corporate USA in the 80s and 90s. It reached its tipping point. Litigators and hostile takeover specialists were suddenly in high demand. The big companies began to migrate to the law firms that were not only willing to do that work, but were good at it. The big established firms eventually realized their mistake and tried to do this work too. But by then they were too late to the game. Joe Flom had already put in his 10,000 hours and they had not. Skadden Arps was the dominant player and all of the big companies began to switch to them. They became the best firm in town, eclipsing in size and power almost all of the old WASP firms. Joe Flom became one of the biggest names in the legal profession. The old firms that did not embrace change paid a high price for their conservative ways; they lost their best clients to the new upstarts. Their law firms were never the same.
This story is explained in detail in Chapter Five of Outliers, which is called The Three Lessons of Joe Flom. Gladwell’s work suggests that there is now a tremendous opportunity for e-discovery lawyers, especially those lucky enough to already have computer competence or young enough to get it soon. The question now is whether the time is finally ripe? Are we at the tipping point? Remember Joe Flom labored for years before his ugly speciality finally skyrocketed. Is e-discovery about to take off in the same way? Has the bell curve finally started to go up?
Assuming yes, and many seem to agree, the next question is who among us now has enough of the “rice-paddy” heritage, as Gladwell puts it in Chapter 8, to not only put in the 10,000 hours needed to attain mastery, but then to keep on working for 3,000 hours per year, year after year, to become the next Joe Flom, the next attorney super-success story?
The question itself is wrong because it assumes that the outlier, the one who attains great success, is an isolated person. Nothing could be further from the truth. The ironic central message of Outliers: the Story of Success is that great success is never a one-person effort. It takes a whole village – the right combination of special people, like the Skadden Arps partners of old. The future lawyer outliers will be part of a great team. They will appear at the right time and place. They will also be driven to excel to an almost maniacal degree. I have no doubt that some group will soon rise to the occasion. Some e-discovery nerd lawyers practicing today will have the right combination of community, luck, 10,000 hours, and hard work to become the next Joe Flom.
Will it be you? Do you love e-discovery work? Is that your true passion? Is the chance to do this 3,000 hours a year a joy? If so, then, according to Gladwell, and I agree, you have a good chance of great success.
More From Judge Facciola
The interview of Judge Facciola sheds more light on the tendency of most in the legal profession to try to avoid e-discovery altogether, much like the WASP firms of the 1970s tried to avoid hostile takeover work.
Judge Facciola: Look, there’s no law that says there has to be electronic discovery in every case. Obviously, there are case in which it’s not going to be called for. The whole trust of the federal rules – the amendments, was a notion of proportion. Electronic discovery, which would be no greater than is necessary to do what discovery does. I don’t think it’s a question of opting out or opting in. If you opt out, you may be ignoring something terribly significant.
For example, you could argue I suppose that this is a domestic relations case that doesn’t involve electronic discovery. Think for a minute. The family banks on the Internet. They communicate with the outside world through their email. I understand when things go poorly and the wife thinks that the husband is cheating; she’s been known to put a GPS in his hubcap. Strangely, in a way that I find hard, I’m reading that electronic discovery is becoming very important in domestic relations cases. When you opt out of this, and you and the person on the other side say you’re not going to go there, you had better be very careful. If it emerges or develops that there was something there that was terribly significant, I don’t know what you’d tell your malpractice carrier when they ask, “What did you do,” and you say, “Well, the other guy and I agreed not to go there.”
Karl Schieneman: Question … Judge Facciola, you had talked about some of the ethical issues or concerns that if someone, if a lawyer doesn’t know this area, can they handle a case? Do you see these situations from your perspective where you think people are close to this?
Judge Facciola: Yes. I have seen it in one hearing before me. I saw it with my own eyes – the sanctions for child pornography are ferocious with many years in prison. We’re dealing with a case where an FBI agent posed as a 12-year old girl and was instant messaging with a guy who was trying to solicit across state lines. The guy answered the question of instant messaging and how this was recorded and being managed, and the lawyer got up and said, “You know Judge, I just don’t understand this computer stuff.” Well, that’s a violation of the 6th Amendment. I can’t think of a more obvious example of ineffective assistance of counsel. That’s really scary.
The other ethical issue, and it’s a fascinating one, is when the shoe was on the other foot, which is – you know more than the opposing counsel. The question is whether you can exploit his ignorance. For example, if he proposes search terms, and you know very well they can’t possibly find what he is looking for, are you under some obligation to direct him? In a recent symposium at Mercer Law School in Georgia, Jason Baron devoted his thinking to this issue in an article that I hope will be published. There is, or I know that Tom thinks, there is this business of taking advantage of the other person’s ignorance that raises some tough, tough legal issues in the context of an adversarial system.
Conclusion: A Bright Future After Clouseau
Lawyers who try to resolve disputes today without competence in e-discovery are setting themselves up to look and act just like Inspector Clouseau. They may have good reason to try to avoid e-discovery. They may have no training or understanding of computers. They may hate the whole thing and rile against the crazy advances of technology. Being only human, they may also try to hide their insecurities by attack. They may put down this new specialty area and attack e-discovery professionals. They may even attack e-discovery in general as the root of all evils in litigation today.
Alternatively, or often at the same time, they may sense the inevitable winds of change, but not have the time or heart to put in their 10,000 hours to learn the field. So instead, they will go to a CLE, or read a few cases, maybe even a book, and then simply claim to do e-discovery. There is no certification, after all, so who is to say they are not an expert? If that is what the client wants them to be, then that is what they will say they are. But, in fact, what they really do is delegate it all out to their paralegals, techs, vendors, and consultants who end up doing the real legal work. That is their Clouseau version of e-discovery teamwork.
This charade often costs the client a small fortune, even to respond to a non-party subpoena. The chief inspectors cannot admit their own incompetence, they may even be blind to it like Clouseau, which is really funny. When things go wrong, such litigation experts usually blame the new rules, or better yet, blame the judges and opposing counsel. They never blame themselves. They shake their fists at the clouds of change and curse the whole world of computers.
It will not take long for this Clouseau farce to be exposed. Sooner or later the clients will catch on, especially when their attorney’s gross negligence is pointed out by the presiding judge. Eventually the old-boy network will breakdown, just like it did before in New York to allow Skadden Arps to shine. Then, the avoiders and posers will be pushed aside for a new kind of nerds’ revenge.
Assuming you are a nerd yourself, or at least want to be on the winning team of the next outliers of law, you will need to improve your search skills. Even those of us who have long since put in our 10,000 hours of mastery still need to keep improving these skills. The rice paddy of a challenging job requires constant attention. It is an exciting challenge for us all. We all need to keep studying and keep experimenting in our practice. Aside from my own humble books, and the books and articles of The Sedona Conference, especially Jason R. Baron, you should also check out the e-Discovery Team’s TAR Course. There is an abundance of resources now; you have only to search.
The time is still young and there is plenty of time left to break into this field. The truth is, from what I have seen, there are now only a few dozen practicing attorneys in the world who have mastered e-discovery search. Of course, there are many other search experts who are not lawyers. They are information scientists, linguists, and engineers employed by schools or vendors. There are other lawyers who are experts in search, but do not practice law per se. They are employed by vendors or work as consultants. But the grand total of all e-discovery search experts is still small, at least on the level of expertise contemplated by Judges Facciola, Grim, Peck, Scheindlin, and others. Electronic discovery is a new field ripe with opportunity. The key to success in e-discovery is, in my opinion, mastery of the ever evolving techniques of search. This takes constant practice, but after all, that is what lawyers do.
No one knows who the great outliers of e-discovery will be. All in the new field will likely prosper, but a few will greatly excel and become the next outliers. The game is on. The outcome will not be known for many years to come. All we know is that the outliers will have a mastery of the core function of search. They will develop economical ways to find the electronic truths needed for the pursuit of justice.
From the insights of Malcolm Gladwell we also know that they will love what they do, just like Bill Gates loved programming and the Beatles loved music. They will work hard and true because that is what they love to do. And they will stand on the shoulders of many giants, supported by a community of friends and family, a whole team, an e-discovery team. They will also be graced with the luck of being at the right time and the right place. May you be one of those lucky souls.
SUPPLEMENTAL READING: Read the cases cited and webs linked or cited in this module.
EXERCISE: Think about what Malcolm Gladwell said in Outliers and how this might apply not only to e-discovery, but to your future career in any field. If you have not read the book, just consider the comments here and those that Gladwell has made in interviews, etc. What insights does his perspective and research provide to you?
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