e-Discovery Team Training
Sec. 1 – Mod. NStudy at you own time, your own place, your own pace.
Welcome to Module 1-N.
Ken Withers on Discovery and Cooperation, the Sedona Cooperation Proclamation, and the California Bar Ethics Opinion Setting Forth Nine Minimum e-Discovery Skills That All Attorneys Should Know
Ken Withers is another sage of Sedona who likes to wear cowboy hats. He works full time for The Sedona Conference where he is the Director of Judicial Education and Content. Ken has more experience teaching judges e-discovery than anyone else in the world.
In this video Ken tells students how to properly present discovery issues to a judge that cannot be resolved with opposing counsel. He also provides wise advice to law students on how to prepare for the challenges they will face in their career. He advises on how to handle older generations of lawyers who may not understand technology and the new cooperative approach. After this exclusive interview with Ken, we briefly review the The Sedona Conference® Cooperation Proclamation. Finally in this important class we consider California Rule Formal Opinion on Ethics No. 2015-193. The opinion lists nine essential e-discovery skills that all attorneys should have.Videos by Ralph Losey will discuss this opinion and the nine skills.
_______
Cooperation Proclamation
To supplement Ken’s talk, take a look at the full language of The Sedona Conference® Cooperation Proclamation. The cooperative model Sedona promotes follows the new rules and encourages parties to reach agreement and specify plans. Here is the introduction from the Cooperation Proclamation:
The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner.
The Sedona Proclamation goes on to explain how cooperative discovery is not only an economic imperative, but also an ethical one, and that Cooperation in discovery is consistent with zealous advocacy.
__________
California Bar Formal Opinion on Ethics No. 2015-193 Setting Forth Nine Minimum e-Discovery Skills
The California Bar issued an important ethics ruling in mid-2016 that all lawyers should know about. The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 (final version August 2016). The key component of the Opinion is the list of nine tasks that an attorney should either be able to do, or, if they cannot, to associate with other legal counsel who does. Below is the language from the Opinion that describes these tasks followed my video explanation of the knowledge required to competently perform them. The video is divided into four parts with some intentional overlap for emphasis.
Just a few years ago this kind of knowledge was considered arcane and was only known by e-discovery specialists. Now the California Bar has taken a bold leap forward to make this knowledge required for all attorneys who litigate in California. The California Bar has thus raised the bar of competence for everyone by making this an ethical imperative in their state. Note, that as footnote seven to the Opinion makes clear, this is not intended to be an exhaustive list. For instance, attorneys must also know how to properly obtain an opposing party’s ESI.
California Formal Opinion on Ethics No. 2015-193 (final version August 2016), at pages 3-4:
Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
1.Initially assess e-discovery needs and issues, if any;
2.Implement/cause to implement appropriate ESI preservation procedures;
3.Analyze and understand a client’s ESI systems and storage;
_____
_____
4.Advise the client on available options for collection and preservation of ESI;
5.Identify custodians of potentially relevant ESI;
_____
6.Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
7.Perform data searches;
_____
8.Collect responsive ESI in a manner that preserves the integrity of that ESI; and
9.Produce responsive non-privileged ESI in a recognized and appropriate manner. FN7
FN 7 – This opinion focuses on an attorney’s ethical obligations relating to his own client’s ESI and, therefore, this list focuses on those issues. This opinion does not address the scope of an attorney’s duty of competence relating to obtaining an opposing party’s ESI.
______________________
SUPPLEMENTAL READING: Find and study at least two articles by Ken Withers that you have not seen before. You will like them. Write up a summary for your later reference. Study the Sedona Conference® Cooperation Proclamation. Also read the full text of the California Bar Formal Opinion on Ethics No. 2015-193. Look for and read a few articles and commentary of this opinion.
EXERCISE. Search the Sedona Conference website and figure out how many judges have now formally endorsed the Cooperation Proclamation. What are the names of the judges in your home state that have adopted the Cooperation Proclamation? Also search to see what articles have been written on the Proclamation from experts inside out outside of The Sedona Conference.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2017
My review of this module and comments:
1. Ken Withers website http://www.kenwithers.com/articles/index.html
has tons of helpful articles on E-Discovery and, they are highly recommended. May take a while to read it but it is worth reading it.
My favorite two are : Considerations for Selecting a Form of Production in Electronic Discovery,” The E-Discovery Standard, Summer 2004
This is one of the most neglected part in discovery process. Parties usually assume that production format is either native or pdf. Later they end up arguing about how E-discovery is not produced in the format it is maintained in. If you don’t decide about the format at the time when you are ready to produce, the producing party will produce in the most cost effective and the most efficient way to produce. So, lesson to be learned from this article is revisit FRCP 26(b)(2) and 26(c) and think hard before you serve the discovery request on to the other side. This will save your time and the other side (remember FRCP 1 : our goal here is just, speedy and inexpensive determination of a case)
My second favorite is : Electronic Discovery Disputes: Decisional Guidance,” Civil Action, Summer 2004: Here Mr. Wither provides a great guidance in why E-discovery is important and should be done right from the beginning. The article even though was written in 2004 but the core message from 2004 is still not heard loud enough among many practicing attorneys.
In my opinion Detroit Medical Center case, I agree that Defendants were treated unfairly but they could have reached out in writing to the other side on the cost issue from the beginning. Every litigation entails some cost but if you anticipate an unduly burdensome cost in processing and production, I would rather collect first, and then get the other side to agree or stipulate in the cost approach. Even though you can’t get a fixed cost analysis on collection, but you can chart a rough estimate based on documents collected and anticipated review time for privilege etc. as Professor Losey explains in his one of the past sections.
Per September 2010 publication, there are total of 111 judicial officers (both from State and Federal- about 30 States and the DC) -Source Sedona website. Unfortunately, Minnesota is not on the list yet. I am keeping my fingers crossed.
I think I read Professor Losey’s article titled Lawyers Behaving Badly in the previous section and was good read next time around too. There is a huge lapse in attorney’s understanding of rapidly evolving technology. Merely possessing an IPAD does not mean that attorney is a Tech Savvy, you need to understand how the data is preserved and understanding of the technology in terms of evidence is crucial and that is what I notice lacking. Met quite a lot of people who have smart phones etc… but if you ask them how evidence is preserved in such gadgets,,, most of the people don’t have clue so to me it is very important for attorneys/paralegals/legal support team who are involved in litigation esp. E-discovery – they have to understand in terms of how real evidence could come in the form of smart phones, I-PADS, Kindle Fire, Nook, Cloud etc. Just my thought.
Carson-Merenda v Detroit Medical’s opinion is pretty hard to read but it is not surprising as Professor Losey points out. Judge can’t even spell Sedona correctly. However, I do believe that Detroit counsel could have done more than what has been done.
Another great section and love the videos!!! Happy New Year to Professor Losey and Team!