“The Rule of Law in the Wild Wild West: Ethics and E-Discovery.” This is the title of the keynote address on the second day of LegalTech West Coast in Los Angeles Thursday June 25, less than two weeks from now. My prediction: it will attract a standing room only audience. The mailing describes this session as “essential and timely”. It sure is. I can visualize an overflow crowd of anxious lawyers, all seeking advice on how to avoid punishment from the courts for e-discovery errors, spilling out of the convention center and onto Figueroa Street.
The law of electronic discovery has taken a sharp turn into the scary realm of sanctions against lawyers. First, the Qualcomm[i] decision in January 2008. In that case the company Qualcomm was sanctioned $8.5 Million for withholding 46,000 relevant e-mails, and several of its lawyers were referred to the California State Bar for discipline for having turned a blind eye to the obvious red flags that their client wasn’t making full disclosure.
Now we’ve got a case where it’s the lawyers only who are getting sanctioned: Bray & Gillespie Management et al v Lexington Insurance Company, 2009 WL 546429, United States District Court, Middle District of Florida, March 4, 2009. For the full decision, click here.
Magistrate Judge Karla Spaulding had harsh words for two individual lawyers and their law firm, Reed Smith, representing the plaintiff Bray & Gillespie (B&G).
A little history: The action had been commenced in February 2007. B&G had originally been represented by Anderson Kill & Olick (AKO), and the partner there having carriage of the action, “Partner E”, moved from AKO to Reed Smith in January 2008, taking this case with him. In March 2008 Reed Smith officially filed as the law firm of record for the plaintiff. Another lawyer at Reed Smith, “Partner B” began working on this matter by May 2008.
In September 2007 plantiff’s counsel (Partner E, then still at AKO) received a Request for Production from the defendant Lexington’s law firm (Carlton Fields) requesting electronically stored information in native format with metadata. Counsel for the plaintiff did not object to the requested form of production
- neither within the 30 day limit after receiving the RFP imposed by Rule 34(b)(2)(A) ;
- nor in response to a motion to compel in January 2008 – we’re now at the time that Partner E moved from AKO to Reed Smith;
- nor at a discovery conference in March 2008,
- nor in a response to a renewed motion to compel in March 2008 – we’re now in the month that Reed Smith became official attorneys of record for the plaintiff;
- nor any time up to their delivery of discs purporting to contain responsive electronically stored information on April 30, 2008.
Rule 34(b)(1)(C) provides that the requesting party may specify the form in which it wishes to receive production of electronically stored information, and under Rule 34(b)(2)(D) the responding party may within 30 days object to the requested form, stating the form it intends to use instead. Rule 34(b)(2)(E) provides that in the absence of any specification of a form of production in the request, the producing party must produce it in the form in which it is ordinarily maintained or in a reasonably usable form.
The committee notes to this rule state:
“The rule does not require a party to produce electronically stored information in the form in which it is ordinarily maintained, as long as it is produced in reasonably useable form. But the option to produce in a reasonably useable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”
As Craig Ball commented six months before the amendments to the Rules became effective, “That means no more “naked” .tif or PDF files stripped of searchable data layers.”[ii] (Forget about searching the internet for a photo to go with this phrase.)
And what did the defendant’s attorneys receive from the plaintiffs’ law firm? TIFF images with no searchable data whatsoever, approximately 100,000 e-mails and roughly an equal number of other electronic files that may or may not have been attachments to the e-mails; there was no way to affiliate any e-mails to any attachments. In other words, exactly what Rule 34(b), the Rules Commentary, other commentators, and the flood of CLE’s on the rules amendments, had been all saying since early 2006 would no longer be acceptable.
After objecting to this form of production in mid-May, Lexington filed a motion for sanctions against B&G, and the hearing was set for June 25, 2008. At that hearing, Judge Spaulding heard testimony from, among others, Daryl Teshima, a California lawyer and well-known electronic discovery consultant.
Daryl “testified that the discs contained ESI that had been converted to TIFF images, not scanned copies of paper documents.” Anyone with even one-tenth the knowledge that Daryl has can spot at a glance the difference between TIFF images created directly from ESI using an e-discovery processing program and TIFF images created from scanned paper. It’s the difference between high-definition and regular TV.
At the conclusion of the hearing on June 25, 2008, Judge Spaulding found that the plaintiff, through its counsel “deliberately manipulated the electronically stored information in such a way as to withhold from the defendants the information that had been requested, specifically metadata,” and further found that the problems with the ESI production were caused by the plaintiff and its agents, and therefore “they will be the ones to bear the burden of whatever cost it takes to get” the ESI produced in a usable format. They were given until July 11, 2008 to produce native files with metadata or equivalent. The plaintiff appealed to the District Judge, but to no avail.
That wasn’t the end of it. In early October 2008 Judge Spaulding – apparently on her own motion — issued two notices: one re-opening the sanctions hearing, and the other directed at Reed Smith and the individual attorneys to afford them “an opportunity to file a supplemental response to the sanctions motion addressing why sanctions should not be imposed against any or all of them as the attorney(s) responsible for the allegedly sanctionable conduct.”
No lawyer wants to be on the receiving end of a notice like that.
The re-opened hearing took place on December 8, 2008. Here it came out that after the defendant’s objection to the form in which it had received production, the parties had discussions between mid-May and mid-June 2008. At page 14, the judge found that during those discussions, one of the Reed Smith attorneys, Partner B, had “concocted a story about the process that B&G and AKO used to gather the discoverable documents. [Partner B] explained that ‘B&G printed the documents from B&G’s electronic systems. B&G sent the printed documents to Anderson Kill. Anderson Kill scanned the documents to create TIFF images of them . . . , from which production was then made…’ ”
This convoluted process, if it was true, would explain why the production consisted only of TIFF images with no searchable text or meta-data. Back in the mid-1990’s, this was actually the way electronically stored information was processed to get it into reviewable form: open the native files in their native application or in some print utility software, print to paper, scan the paper to TIFF images.
However, if you wanted them to be in any way useful for a review, you’d also OCR the text and have bibliographic coders capture the date, from, to, title, etc. None of that was done here because it didn’t have to be, because the electronic data hadn’t been printed and scanned. While the plaintiff’s case was still being handled by the previous law firm in 2007 it had in truth actually been processed in a perfectly normal up-to-date way: using one of the now-numerous e-discovery conversion programs, in this case, Extractiva. It was then loaded into an Introspect database, also quite normal and acceptable for 2007. The Extractiva program created the TIFFs, populated the fields for date, from, to, title, etc., and captured the full text.
Technology like Extractiva has been around since the late 1990’s. Any law firm authorizing e-discovery the old inefficient print-then-scan way by the middle of this decade would be guilty of malpractice. Anderson Kill didn’t do that in 2007, and had Reed Smith been in charge of the case then, there’s no way they would have done it either. We’re talking about a couple of top-tier law firms here.
In any event, somehow the data produced to the defendants on April 30th consisted of the nice-looking TIFF images that would result from using a tool like Extractiva, but apart from a mere load file delineating the start and stop of each document, the images were accompanied by none of the searchable data that would make them useable. How this happened is unclear; normally, exporting a production set from a program like Introspect requires conscious human intervention to select which fields of data get exported and which do not. To the credit of the two partners, at least the associates and other lower-rung employees didn’t end up taking the fall for this.
The judge continued, at page 15:
Among those numerous facts: “Reed Smith attorneys had access to the Introspect database before and after AKO transferred it to Reed Smith. If he had reviewed the Introspect database, [Partner B] would have seen that it contained ESI metadata. Finally, [Partner B] could simply have contacted AKO to learn how the information was gathered. … The false explanation [Partner B] gave regarding how ESI had been collected was based, at best, on willful blindness which unreasonably prolonged and multiplied the proceedings regarding the ESI discovery dispute.”
At the December hearing, Partner B testified that he had erroneously assumed the plaintiff’s electronic data had been printed and scanned to TIFF because he had heard about summer interns standing in front of scanners, and he incorrectly leaped to this conclusion. (There had been a paper-source component that would explain the scanning activity.)
The result: Reed Smith and the individual attorneys were ordered to pay the sanctions themselves, and the judge specifically excused their client B&G from any liability.
I don’t wish to appear either too critical nor too defensive of Reed Smith and these two attorneys when I say this, but there’s a bit of a “perfect storm” element to this. Reed Smith took this case over from another firm (AKO) just as discovery was heating up but after the client’s electronic data had been collected and processed, so they didn’t have their own institutional knowledge of how this had been done. Admittedly, the lead partner was the same person, but let’s face it, lead partners on big cases usually don’t work on e-discovery at any level of detail. Compounding this problem, the relationship with the former law firm appears to have been frosty, though when pressed, the Reed Smith attorneys admitted that AKO had not been uncooperative or obstructive.
Still, it’s easy to envision Reed Smith not getting into this kind of trouble if they had managed this case from the start. It doesn’t excuse what happened, but it does inject a certain “there but for the grace of God go I” element. The change in law firms introduced a possible point of failure in communication and understanding that requires extra effort to overcome. If you’re one of these lawyers, and you think you know the answer to how the ESI was processed, and don’t relish having to go back to the previous law firm to find out for sure, it’s easy to see how sticking with what you think you know would feel more comfortable; it also might look like the path of least resistance.
On the other hand, the mere fact that the ESI was in an Introspect database necessarily implies that there’s something more than mere TIFF images there. I know that, lots of litigators know that. However, lots of litigators don’t know this – but by now they should.
What are the lessons to be learned from this?
One. If you don’t know, ask. In a large firm like Reed Smith, that doesn’t even require asking someone external who might charge fees. This firm has a group of practice management and litigation support personnel who know this stuff cold. If you’re in a firm that doesn’t have these internal resources, there are plenty of consultants out there to help you.
Two. If electronic discovery is not your forté, whatever you think you know may not be correct. On top of which, you don’t know what you don’t know. You may vaguely recall having heard that electronic data was made ready for review and production by printing it and then scanning it. If your memory is anything like mine, you might think you heard this two years ago when it was really twelve years ago. Technology changes dramatically in a matter of months, not years.
Three. Never make an assertion or representation to the court – or to opposing counsel – that turns out not to be true if you do not have a solid good faith reason for believing it to be true at the time you assert it. Suppositions and assumptions are unacceptable.
Four. A little knowledge is a dangerous thing. Too many lawyers only have a little knowledge. This episode shows how all too many lawyers know just enough about electronic discovery, in snippets and disconnected fragments, to be dangerous – mostly to themselves. What was the purpose of going through these gyrations of trying to produce images stripped of all metadata anyway? There’s an urban myth among lawyers that if they produce native files with metadata, the other side’s going to find some nugget in there – whatever “there” is — that’s going to set off a whole string of calamities starting with losing the case, then losing the client, then losing a malpractice lawsuit, then followed by hail, frogs, locusts, and so on.
The defendant had specified in its RFP that it wanted the plaintiff to produce “such information, without deletion or alteration of meta-data, in its native form.” If you receive an RFP phrased like this and you’ve got a concern about it, find out from people who know what these words mean
- what are legitimate concerns,
- what are unfounded concerns,
- what might be possible resolutions,
and then work it out in the meet and confer. There’s the kind of metadata that is essential for meaningful review and production of data. And there’s the kind of metadata that simply adds to the information overload that you don’t want to have to review prior to production and the other side doesn’t really want to have to look at if you do produce it to them.
Can we not get over this metadata bogeyman, already?
Discovery disputes are bad enough. Discovery disputes arising from fear of the unknown are worse. They’re worse because they’re totally avoidable with some real education, with some help from resources either inside the law firm or from the consulting community, and with some reasonable discussions with the other side.
Five. About the words “some real education” just mentioned. One-hour lunchtime CLE’s obviously haven’t gotten the job done. Judge Shira Scheindlin, of Zubulake fame, has been quoted that e-discovery now just means discovery. She exaggerates, though not by much, to make a serious point. As Browning Marean, Tom O’Connor, and Ralph Losey discussed in Ralph’s recent “New Tonight Show” post on his blog (here), discovery of written material is now almost entirely e-discovery, unless you’re litigating the Louisiana Purchase. For a more detailed discussion of the ethical implications of e-discovery competence or lack thereof, and the need for much more lawyer education and training, go to these two other posts on Ralph’s blog, here and here.
Closing thought. Three years ago, another judge from the same District Court got us laughing from coast to coast with his creative resolution to another discovery dispute. He ordered counsel to settle it by “Rock, Paper, Scissors” on the steps of the federal courthouse in Tampa[iii].
That case: funny. This case: not so funny.
[i] Discussed in my article rocks-and-hard-places-march-2008.
[ii] Craig Ball, The Train’s About to Depart, Law Technology News, June 2006, at 44.
[iii] Avista Management v. Wausau, 05-cv-1430, June 6, 2006, Presnell, USDCJ. Copy here.