Category Archives: Judges

A Rare (Your)Honor

PH03259I So, there I was Wednesday evening at my monthly L.A. County Bar Association Litigation Inn of Court gathering.  I'm standing in the buffet line and who ends up standing next to me?  The Honorable Carl J. West!  For those of you who have followed this blog since its inception (that would be all of you, right?), you may recall I wrote about judge West's panel at Legalworks.

Of course, I did the only thing one would do in a situation like this; I forced him to talk to me and give me a few tidbits for you!  Judge West graciously obliged, and told me he was a bit surprised at how he became known as one of the "e-discovery judges".  He said it really all started with his involvement with The Sedona Conference, but admitted "I think I know five percent more about technology than most other judges".

I pointed out to Judge West that the extra five percent automatically makes him an expert by virtue of knowing more and we had good chuckle over that.  He also surprised me when he mentioned that his larger concerns were with attorneys who come before him.  He said many times it's obvious that they have no idea what e-discovery is or what they're supposed to do about it.  He said, "They really don't know that they don't know, and I usually end up advising them to get technology experts."

My signature line has always been, "Know what you don't know."  Great.  Did I 'steal' it from judge West or did he 'steal' it from me?  I think I'm covered.  We both stole it from Confucius!

Redux: Orly gets Sidekicked!

Einstein Time is Money

We're revisiting two former posts today to see how things are working out…

First, we have birther Orly Taitz.  Her frivolous filings have resulted in a $20,000 sanction from judge Clay Land.  She has a lot of supporters who I'm sure will raise the cash for her, so I don't think it'll serve as much of a deterrent.  But maybe this will; the judge has also referred his order to the State Bar of California.

If you want to read a PDF of the judge's order, click here.

Second, we have the Sidekick smartphone and all of the lost user data.  I've been following this story with interest.  Microsoft has issued a recovery tool, but it only applies to contacts, not all of the other data such as photos and notes.  As expected, class-action lawsuits are flying, but many will fizzle out if the recovery tool works.

At this point, there's no solid confirmation that users have recovered data – or what particular data has been recovered – but there's a moral to this story.  It originally hit the news wires around October 10th and the recovery tool was to be available yesterday. 

Moral #1:  Can you afford to be out of commission for two weeks?  When you trust your data to the cloud, make sure it isn't the kind made up mostly of vapor.

Moral #2:  Always, always, back up your own data whenever possible.

e-Discovery LOL: Orly got her Taitz Caught in the Wringer!

"Finally, in a remarkable shifting of the traditional legal burden of
proof, Plaintiff unashamedly alleges that Defendant has the burden to
prove his "natural born" status. Thus, Plaintiff's counsel, who
champions herself as a defender of liberty and freedom, seeks to use
the power of the judiciary to compel a citizen, albeit the President of
the United States, to "prove his innocence" to "charges" that are based
upon conjecture and speculation. Any middle school civics student would
readily recognize the irony of abandoning fundamental principles upon
which our Country was founded in order to purportedly "protect and
preserve" those very principles."
"Plaintiff's complaint is not plausible on its face," Land concludes. "Unlike in Alice in Wonderland, simply saying something is so does not make it so."

Facebook + Judge = Trouble for Lawyers!

J0436407 Ok…looks like it's time for me to post another reminder about attorneys who use social networks.  In this hilarious article from the ABA Journal (hilarious to me, anyway), judge Susan Criss tells how attorneys who are her Facebook friends lie to her in court but post the truth on Facebook.

Really?  Your father died?  What's next?  My dog ate my motion???

Don't make me come over there…

e-Discovery California: How Safe is your Harbor?

J0437217 Last time, I discussed what isn't in the CEDA.  Now, let's take a look at what is in there and how it differs from the Federal rules.  First up; Safe Harbor.

I've always tried to explain law in a common-sense fashion (which may be counter-intuitive to some, but I try).  In most cases, it's the procedural aspects that make things complicated (that, and vagueness of the laws themselves), but the basics still rely on logic.  For e-discovery Safe Harbor, you can almost understand it by channeling 'Watergate + 1' – what did you know and when did you know it?  The '+1' is, how did you react?

To me, how one might reach a violation is similar to the Federal rules; how sanctions are imposed is where things go in a different direction.

You want the easiest way to avoid sanctions?  Remember the word "but".  Absent exceptional circumstances, if you fail to preserve information due to a routine, good faith procedure, you're fine, but if you knew or should have reasonably anticipated that there was an obligation to preserve discoverable information…

Get the idea?

Here's where I see the problem; the language "Absent Exceptional Circumstances".  Anybody want to take a crack at what might be "exceptional circumstances"?  What happens when nobody can nail down what that means?  You probably guessed it; the judge will decide!

Monetary sanctions will likely be harder to come by under the California Safe Harbor rules.  Unfortunately, adverse inferences and/or sanctions on counsel may be more likely.

I suppose this is where I normally make a witty closing comment like, "Don't let your case go down with the ship by striking an e-discovery iceberg."  Naaaah…too predictable…

ESI: Miami (LegalTech Keynote Summary)

CSI MiamiYes, this post is a summary of what I saw at LegalTech at the Los Angeles Convention Center on Thursday. 

No, it didn't take place in Miami.  But, if the title said ESI: Los Angeles, nobody would get the joke, would they?

Besides, I would never be able to use this catchy title unless something happened in Miami, and I can't wait that long!

First of all, I'd like to thank Monica Bay.  She's a linchpin of LegalTech, and was also nice enough to cite my blog on her own blog, The Common Scold. I had a lot of meetings scheduled, so I was only able to attend the keynote presentation and one other session.  This is my summary of the keynote.  I'm knee deep in depositions, so I hope to be able to post a summary of the other session on conducting e-discovery abroad over the weekend.  Please bear with me.  I want to take my time so I can do quality posts for you.

The moderator was Carole Basri from Corporate Lawyering Group, LLC.  She's also an Adjunct Professor at the University of Pennsylvania Law School.  Next was Tom Allman, a retired general counsel, who is the editor of The Sedona Principles (2nd Edition).  Last were two judges – and you know how much I like judges – the Hon. Dave Waxse, U.S. Magistrate, District of Kansas and the Hon. Andrew J. Peck, U.S. Magistrate, Southern District of New York.

My 1st observation – not a criticism – we're in downtown Los Angeles with AB 5 (the California Electronic Discovery Act) sitting on Gov. Schwarzenegger's desk awaiting his signature.  No California or 9th Circuit judges on the panel.  Darn!

There was one word that all on the panel agreed was the mantra; cooperation.  I've spoken about this before, especially because attorneys are used to the adversarial system, but the judges want the parties to get together and resolve issues between them – not argue everything in court.  All this does is bog the process down further.  They expect that each party will involve an expert early on in the process, not wait for a disaster before calling one in.

Judge Peck went right into Rule 26(f) (meet & confer).  He says most attorneys think they'll only have to have a single meeting, but he sees it as a repetitive process throughout the litigation as the parties cull their issues.  He doesn't see how one meeting can accomplish this.  Furthermore, he estimates that only 50% of ESI will be revealed through any automated process, meaning the human element cannot be avoided.

He says he's tired of attorneys attempting to do a "drive-by meet & confer", which as you can imagine, results in a lot of problems later.

He briefly addressed some cost issues.  To him, it's a "proportionality" argument.  There's no point in running up unconscienable costs that will outstrip any award that a party might receive.

He also briefly addressed the issue of international rule conflicts.  He summed it up in one word; minefield.

Mr. Allman provided a contrarian voice.  He's completely against the cooperation argument.  But he has a point, and that is that judges must remember there isn't a single side to any conflict, but two sides.  He also said that the idea that a corporation can have a single retention policy is "ludicrous" (that word was used a lot by all of the panel members yesterday).  He said the idea behind policy is to ensure that "no relevant info is lost", and this requires a discussion case-by-case, department-by-department, to understand what – and for how long – data must be retained or destroyed.  This vindicates the view I stated in my post "Baby?  Meet Bathwater…" last month.

Mr. Allman harped on something I think a lot of people don't consider; that there will be "structured" (predictable) data that is easier to identify and control, but there will also be "unstructured" (email, memos, 'informally-produced') data that is much harder to manage.

He is a true-believer, though.  He says the entire reason companies should implement these policies is that they will "save costs" in the long run, not increase them.  He'll get no argument from me.

Last, he said that based on his observations, even with all of the attention to e-discovery, "awareness is very low".

Judge Waxse scared me.  The first thing he said was, taking into account all jurisdictions, there are over 14,000 laws that apply to document retention.  He was also less optimistic than Judge Peck in that he believes automatic document review results in only a 20-40% success rate.  He attributes this to inexperience of the people tasked to do these searches.  They don't interview the principles involved, so they're unaware of the proper search criteria, such as aliases, nicknames, codewords, etc.

Judge Waxse attempts to take some of the confusion out of 26(f) by providing the attorneys with his own comprehensive list.

He also has zero tolerance for attorneys who mislead him.  He summed it up in one word; he wants "truthfulness".  He says as far as he's concerned, an attorney will get into a lot less hot water if he or she simply admits "We don't know where the data is" rather than obfuscates.  Sounds obvious, but he said attorneys lie to him all the time.

On this note, the panel addressed this area in-depth, saying that they would like to see a "culture of ethics" in the handling of e-discovery matters.  Some discussion of Rule 502 resulted, in particular, issues such as inadvertent production.

The way the judges see it, issues such as this, confidentiality, producing metadata and clawback agreements should be discussed and agreed-upon by the parties at the outset of litigation.  Generally, if a good-fatih inadvertent production has occurred, there's no 502(e) waiver, however, what do you do if it was advertent?

In closing, Judge Waxse explained why he, like many other judges, instructs the attorneys to videotape their meet & confers:

"Lawyers are like particles of physics.  They change when observed."

Common Law not so Common Anymore

j0305818If you haven’t already seen it, please visit e-Discovery Team’s site and read my colleague Ralph Losey’s outstanding piece on Judge Shira Scheindlin.

I’ve been having a theoretical discussion with some very bright legal minds about the critical influence of judges on the future of e-discovery.  My theory is that e-discovery is causing the resurgence of common law over statutory law.

Our system of jurisprudence is a series of building blocks.  Originally, the principal block was common law (also known as ‘judge-made’ law).  One could trace the progression as it passed through the hands of various courts over the years as ‘modern’ principles and sensibilities of the particular time were applied.

Later, statutory law moved to the forefront and the judges’ role changed to one more of interpretation and application than creation.

What I see happening now is judges taking a very active role in not only interpreting and applying e-discovery rules, but channeling Chief Justice Marshall from Marbury v. Madison, as we used to study in Constitutional Law class:

“It is emphatically the province and duty of the judicial department to say
what the law is.”

Eh?  It’s a theory…

Jurors take the Law, PDAs – and e-Discovery – into their Own Hands

j0314263 Coming soon to a courtroom near you; sequestering with no access to electronic devices, and all movement and correspondence monitored – for the entirety of every trial.  Got any better ideas?

On the heels of my post late last week about “Juror Jonathan“, comes the following story from the New York Times about jurors ignoring their judges’ admonishments and conducting their own online research during trials.

Courts have always operated on the honor system when it comes to non-sequestered juries.  We hold out hope that when a judge issues jury instructions, they will be taken seriously and followed to the letter of the law.  Unfortunately, we also know that individuals violate these rules all of the time.  Sometimes they’re caught – sometimes not.

Now, virtually every PDA comes equipped with the ability to access the internet, so jurors can conveniently misbehave on their breaks!  If our system of jurisprudence can’t get a handle on how to control juror misconduct, here’s the next place they’ll be getting a ‘handle’ on them:

ca. 2002 --- Motel Room Toilet --- Image by © Royalty-Free/Corbis


Dancing ‘Geek to Geek’ – Judges’ Panel Weighs in on California AB 5, ‘Train Wrecks’ and the ‘Mayflower’

If this keeps up, I’m going to rename this site the ‘Hot Potato‘ blog…

 I’ve posted ad nauseam about how parties want to rid themselves of the e-discovery hot potato, but throwing it to the Judge?  Not so fast, says the Hon. Andrew J. Wistrich.  You can try, but he won’t play the game!  That was one of the morsels from the Judges’ Panel, which also included the Hon. Maureen Duffy-Lewis and the Hon. Carl J. West.

I like Judges.  They’re always more candid than I expect, and as some of you have probably figured out from my prior writing, I like candor.  Don’t beat around the bush, don’t use fancy language, just tell me what you mean!  I certainly got a lot of that from this panel.  It was the best 75 minutes a person interested/involved in e-discovery could spend, because it tells us where things are headed in the minds of the Judges – and ultimately, they’re the ones we are speaking to, not only our adversaries.

What was the most important concern to the panel?  Cost!

Judge West lead off the discussion and to my delight, he immediately weighed in on California AB 5, noting the pending March 3rd hearing and saying he expects the Bill to be adopted either by late this quarter or the next.  My take?  California finally reached a budget deal, so we’ll see if that development facilitates the passage of AB 5.

Judge West was concerned about two seemingly-contradictory provisions in the Bill; one, which discusses imposition of sanctions, and the other, which defines Safe Harbor.  He noted there were several exceptions to Safe Harbor that might incur sanctions.  That reminded me of law school.  As my professor used to constantly warn, “Everyone knows the rule, but they’ll test you on your knowledge of the exceptions to the rule”.

He also mentioned that more and more, he’s seeing each party provide a technology expert at hearings, and that many times it becomes an ‘expert versus expert’ issue.  That’s when he coined the phrase, credited to another Judge, that the parties should have their respective experts ‘dance geek to geek’.  I just want the Judge to know I haven’t worn horn-rim glasses since grade school…

Judge Duffy-Lewis spoke next…

She’s involved with what we refer to in California as ‘Fast Track’, but she came right out and said it; e-discovery hearings in her courtroom sometimes resemble “train wrecks”.  She said this occurs because she doesn’t see cases until they’re 90 days out and many of the lawyers wait to file motions until their case is about to be heard.

She would like to see attorneys dive right in as soon as possible and not wait.  They should begin submitting motions early related to issues of privilege, preservation and notice.

A major issue is how to handle privileged documents.  For example, I don’t want to turn over to the other side a document that contains information I’m going to use to impeach my adversary.  That’s easier when you’re talking about a paper document, but not so easy when the particular statement you need is buried in a 20-page email thread between multiple custodians that contains other relevant statements.

Judge Duffy-Lewis’ solution was to create something called an Impeachment Log.  The attorneys submit the documents to her, then she makes the determination, preserving the privilege.  Brilliant!

What does she see in the future?  Recommending a status conference will become virtually mandatory for e-discovery issues, and she predicts the appointment of special masters will become more prevalent.

Judge Wistrich completed the trifecta.  Talk about candor!  He’s a Magistrate Judge of the U.S. District Court for the Central District of California (I’m a member also) so his was the Federal view.

Judge Wistrich didn’t mince words.  He said the “rules have helped, but haven’t solved the problem.”

What problem?  The adversarial system and the natural tension created by asking parties – that by virtue are required to keep things close to the vest – to break that habit to cooperate on e-discovery issues.  He said the parties are going to have to get around that problem because in many cases, the experts are going to ask for – and be granted – access to their adversaries’ data.

He also said he’s “uncomfortable” because, “I’m not sure I know enough”, and is “concerned” that e-discovery is going to end up adding another layer – experts – to the front-end of the process, further bogging it down.

Still, like Duffy-Lewis, he says attorneys had better be prepared to take the pro-active approach.  He clearly understands his role and will not let the parties try to shift decisions to the bench that don’t belong there.

He also discussed Mancia v. Mayflower Textile Servs. Co.,
2008 WL 4595175 (D.Md. Oct. 15, 2008) and its effect on Rule 26(g).  I wasn’t surprised that Chief
Magistrate Judge Paul W. Grimm would be cited at the conference, since he’s one of the pioneers in this area.  Wistrich said that, when faced with issues of good faith, he orders the parties to videotape all further meet & confer discussions.  Strangely, he noted, their behavior improves immediately.