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."