Better Discovery

Not sure what to make of this, but there is a very real distinction between “clawback” and “quick peeks.”

So, if I can interpret a little bit what I think C. Spizzirri is getting at here:

Certainly, there are clawback provisions in this order, but the production of documents without review is what makes this a quick peek. The two are often presented as alternative means of protecting privilege waiver in eDiscovery, but it seems that clawback protects privilege while quick peek shifts costs. So quick peek is really clawback plus cost-shifting?

It’s not clear what In Re: Waddell & Reed Financial, Inc., No. 4602-CC (Del. Ch., June 12, 2009), has to do with this issue, but ACS State Healthcare, LLC v. Wipro, Inc. and Wipro, Ltd., No. 4385-VCP ( Del. Ch., July 23, 2009) talks about the quick peek stipulation:

The Stipulation permits the parties to the action to produce documents, without first engaging in a page-by-page review and without risk that such production would constitute a waiver of attorney client privilege.

I’m not sure that there OUGHT to be a distinction. The question is of risk is an area where transparency is important and deserving of more than cursory acknowledgment. The focus should be, first, on protecting the client’s interests, and THEN protecting counsel.

The protections in the FRCP are largely to protect counsel [e.g. from malpractice claims], not the client, so counsel should always pursue clawback protection, –whether or not production is pursuant to a “quick peek” arrangement. Further, I would argue that even quick peeks should be subject to negotiation as to prior searches, that can be used to unilaterally pull documents that bear a “high probability of retention.”

This class of documents includes any document which bears universally understood indicia of irrelevance or privilege such that the risk to the client of production is unbearable. Which means that consultation with the client is imperative, prior to accepting any level of broad production regime. Stuff like travel schedules and Amazon receipts need to go through, as I argue, so that he opposing party has the ability to decide upon relevance.

This can take place at the meeting between the parties to negotiate search terms, with a difference: the searches run are not those for production in general, but those, specifically, that address open and obvious “non-producability.” Maybe all counsel does is pre-tag them, but something more needs to happen than a mere data dump.
And, therefore, discovery should NEVER be produced without at least a baseline series of queries. The difference is that the cost of a comprehensive review is not needed to protect the client’s interests, because the risk of loss (producing critical documents that ought to have been held back) can be somewhat mitigated.

Clawbacks aren’t there to protect stupid-but-inadvertent disclosures [i.e. all emails from counsel marked "Contents are for C-Level eyes only from counsel subject to attorney-client privilege" really ought to be pulled, clawback or no].

Similarly, quick peeks should not reward the diligent at the expense of the lazy: design the quick peeks to protect the client’s interests,–don’t just turn stuff over.

Does anyone reallyt just dump files in total reliance of clawbacks and quick peek protections? I hope not!

Read with interest today a post on Bow-Tie Law, which describes a recent Order with the following points:

The Court ordered the parties to complete the following discovery by October 1, 2009:

1) Defendant’s production of de-duplicated data. The Court required the Defendants to “provide their computer expert and technician used for the de-duplication process to explain and describe this process, including the technique and criteria used by the process, to Plaintiff’s expert.” White, 1-2.

2) A meet and confer between experts on a search protocol for PST’s to find three email messages. White, 2.

3) A search to be performed with the both experts present on the PST data. White, 2.

4) Defendants were to perform an immediate privilege review. White, 2.

5) Non-privileged search results were to be produced to Plaintiff counsel immediately. White, 2.

6) Defense production of the litigation hold notice issued at the beginning of the case. White, 2-3.

This order says more about the inability of counsel to cope than anything else.

In litigation, the higher the stakes, it seems to me, the LESS willing one ought to be to allow an opponent to set the terms of de-duplication.

Handing over the data is always a tricky proposition, but allowing the opponent to do the -duplication means that one has to accept the consequences that:

1) the opponent has all the incentive in the world to sub-optimize queries [and then run different queries internally]

2) quality control on work done by someone else is not possible, if all you see is the outcome.

Allowing the opponent to de-dupe is a strategic error and one that should be explained to the client early on and a decision made as to the value of doing each level of data massage internally.

When you go to a massage therapist, do you tell her not to touch the left side, because she’s already done the identical right side?

I propose an alternative: each party does it’s own de-duping and then create a list of files they believe to be identical. Mark them as such and move on. Failure to mark means inability to complain.

De-duping is not the sort of discovery dispute that should have required command and control from the judge.

With respect to the Order directing the parties to devise a search protocol for 3 email messages,–what is the point of that? All it will do is confirm that, yes, we can consistently find 3 email messages.

This case seems to prove that court orders in e-discovery are just like what happens when two siblings can’t agree on who gets the piece of cake. They take it to Dad, who is tired of the noise, and settles it by eating the cake himself.

Is this good lawyering?

Not sure about this, but it could be really beneficial. Two organizations have announced certification programs this week.

The Posse List Certification

The Posse List keeps growing and growing!

All programs will be free to participants.

We launch this program with the Catalyst CR Certified Reviewers program (CRCR), the certification program for Catalayst CR (for information on the software click here) which is gaining significant market share and being requested by many corporations and law firms due to its many options and easy programmability, and its multi-language capabilities.

The live certification program will be held in Washington, DC on October 7th and it will be hosted by ClutchLegal. Participants in the CRCR will be trained on review using the CR Assigned Review Module and take an examination, testing them on their knowledge of review using Catalyst CR. Those who pass the exam receive the status of Catalyst CR Certified Reviewer.

Organization of Legal Professionals

There’s a bigger story here, not sure what it is from the website (weird URL), but here’s the basics:

The Organization of Legal Professionals is a non-profit association dedicated to setting standards and certifications through collaboration, education and certifications.

Membership is open to anyone who is interested in furthering the profession. The OLP is comprised of some of the top legal authorities, spokespersons and educators in the legal field. The first mission of the organization is to establish generally accepted standards and certification in e-discovery. Additionally, OLP seeks to provide a collaborative forum to disseminate information, educational opportunities and opportunities in the legal field.

Here’s the deep bench they’re working from:

The OLP is honored and pleased to announce the 2009 Board of Governors:
(For more information about our Board, please see Biographies.)

Arnold Blair
Sr. Staff Attorney, WilmerHale, New York, NY

The Hon. Mark J. Cavanagh
Michigan Second District Court of Appeals

Kunoor Chopra, Esq.
President & CEO, LawScribe, Los Angeles, CA

Peter Del Valle
Complex Case Manager, Seyfarth Shaw LLP, Los Angeles, CA

Jeff Fowler
Partner, O’Melveny & Myers LLP, Los Angeles, CA

Ron Friedmann
Sr. Vice President, Integreon, Arlington, VA

Professor Jay Grenig
University of Marquette School of Law, Milwaukee, WI

Nick Hariton, Esq.
Managing Director & Counsel, Imaging Presentation Partners, Los Angeles, CA

Anne Kershaw
A.Kershaw P.C. Attorneys & Consultants, Tarrytown, NY

Linda A. Klein
Managing Shareholder, Georgia Offices, Baker Donelson, Berman, Caldwell & Berkowitz, P.C., Atlanta, GA
Past President, State Bar of Georgia

Shannon Capone Kirk E-Discovery Counsel, Ropes & Gray. Boston, MA

Browning Marean
Partner, DLA Piper, San Diego, CA

Toni Marsh, Esq.
Director of Paralegal Studies, George Washington University, Washington, D.C.

Douglass Mitchell
Counsel, Boies Schiller & Flexner LLP, Las Vegas, NV

Nigel Murray
Managing Director, TRILANTIC, London, England

Tom O’Connor Legal Electronic Document Institute, New Orleans, LA

Patrick Oot
General Counsel, Verizon Communications, Richmond, VA

Herb Roitblat, Ph.D.
CEO, OrcaTec, Los Angeles, CA

Joseph C. Scott, J.D.
General Manager, CompuLaw/Deadlines-on-Demand, Los Angeles, CA

Eddie Sheehy CEO, Nuix, Sydney, Australia

Charles Skamser
CEO, EDiscovery Solutions Group, Boise, Idaho

Madison S. Spach, Jr.
Spach, Capaldi & Waggaman LLP, Newport Beach, CA

Christy K. Stouffer
Director of Practice Support Services, Patton Boggs LLP, Washington, DC

Joe Thorpe Managing Director, International Litigation Services, Los Angeles, CA

Karen Willenken
Counsel, Skadden Arps, New York, NY

The Advisory Council

Henry Alonso, Complex Case Director, Dept. of the Treasury, Washington, DC
Donald Billings, West Coast Manager Litigation Support Practice, Sidley & Austin, San Francisco, CA
Mary Buker, Principal, Litigation Technology & Consulting, Inc., Austin, TX Ted Brooks, President, Litigation-Tech LLC, San Francisco, CA
Kevin Chern, Esq., CEO, Total Attorneys Practice Management Association, Chicago, IL
John Finlay, Business Development Executive, XactData, New York, NY
Oliver Gierke, Litigation Case Manager, White & Case, NewYork, NY
Debra Hindin-King, Litigation Paralegal, Holland & Hart, Denver, CO
Conrad Jacoby, Esq., Attorney & Consultant, Efficient EDD, Washington, DC
Nancy Jensen, Sr. Litigation Analyst, Reed Smith LLP, San Francisco, CA
Anne Kemp, Principal, Litigation Support Management, Sacramento, CA
Julie LaBoe, Editor-in-Chief, LegalTechbase.com, Peterborough, NH
Danielle Marbury, Litigation Support Trainer, WilmerHale, New York, NY
Dr. Robert Mongue, Assistant Professor, University of Mississippi Legal Studies, Oxford, MI Julie Parker, Commodity Futures Trading Commission, Washington, DC/Parker Litigation Services, Flagler, FL
Jim Parrish, Principal, Studeo Legal, Ft. Worth, TX
Bonita Paul, Human Resources Director, MilbankTweed, Los Angeles, CA
Janet Powell, Case Manager, Olgetree Deakins, Miami, FL
Jason Primuth, Principal, Unfair Advantage, Menlo Park, CA
Kate J. Rorrer. Senior Manager, Practice Services, Cooley Godward Kronish LLP, San Francisco, CA Dana Schultz, Attorney at Law, Bay Area, CA
Dave Tiller, Principal, Studeo Legal, Phoenix, AZ

The Board of Directors and Co-Founding Members

Harriet Cohen, M.Ed., Executive Director
Judy Estrin, M.A., Chief Operating Officer
Tom Lenzo, M.Ed., Chief Learning Officer

Dialexica Programs Coming Too!

Stay tuned for the Dialexica Tech Awards and Agile Lawyer Training Programs!

Time may never reveal the motivation for Biller v. Toyota. Or the 75 pages of Complaint the court has now refused to seal.

Unfortunately, Toyota’s press release does little to clarify the e-discovery issues, even as it seeks to ssway public opinion against the Plaintiff on personal grounds (always a little distasteful). Mr. Biller may be unstable, as they strongly imply, but that doesn’t mean he’s crazy,–or wrong about what he claims (he did??) on behalf of the company.

If he did those things, well, we’ve got several ethical issues to sort out…like his license to practice law. But, something strongly suggests that defense of this lawsuit is NOT seriously grounded in concerns about Mr Biller’s mental state.

What has been left out of other reports, but appears on the Justia site, is the fact that Mr. Biller owns 50% of an e-discovery firm that is also a named Plaintiff.

So, my gut tells me that this lawsuit is either a response to a business issue,–or publicity for someone (not sure who). Will there be or has there been a motion to force arbitration (Cf. Exhibit 2)? If so, then that will make this a very interesting ADR case as well!

Plaintiffs: Dimitrios P. Biller and Litigation Discovery & Trial Consulting, Inc.
Defendants: Toyota Motor Corporation, Toyota Motor Sales, U.S.A., Inc., Christopher Reynolds, Jane Howard Martin, Eric Taira, Dian Ogilvie and Alicia McAndrews

Case Number: 2:2009cv05429
Filed: July 24, 2009

Court: California Central District Court
Office: Western Division – Los Angeles Office [ Court Info ]
County: Los Angeles

I’m trying to find the Complaint, Answer and court Order’s but these may only be available on PACER. I’ll see if I can find that service to get around having to pay for information, which even the judge on the case said is “public.”

…

Got it! Thanks CBS: don’t know if y’all meant to hide it (maybe pending the judge’s ruling), but though the link is WRONG, the url errors were obvious! Next time, suggestion is to take it down. Any 12-year old could have found it last week.

Good url : “http://www.cbsnews.com/htdocs/pdf/BILLERvTOYOTACOMPLAINT.pdf”

Bad url : “http://www.cbsnews.com/htdocs/htdocs/pdf/BILLERvTOYOTACOMPLAINT.pdf”

Given the nature of the Complaint, I won’t put it up here until I can get Defendant’s Answer, but if you want it, ping me.

Looks like this is really an IP case. Allen & Wohrle seem to have filed the complaint representing the Plaintiff.

Mr. Biller’s E-Discovery Seminar Agenda

Here is the agenda offered by LDT. It is reprinted as published on his website, because it’s a pretty good outline and I suspect it will not last long. I’ve pasted it here as published, so please refer to the hyperlinked site for current and accurate information. I’m only posting it here for your information.

»Why E-Discovery is Important to Corporations, Lawyers & Judicial System: 9:00 a.m to 10:00 a.m.

* Corporations
* Lawyers
* Judicial System
* Differences between Electronically Stored Information & Paper Documents

Law on E-Discovery

* Zubulake vs. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y., May 3, 2003).
* Zubulake vs. Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. July 24, 2003).
* Zubulake IV
* Zubulake V

Amendments to Federal Rules of Civil Procedure:

* Rule 16
* Rule 26
* Rule 33(d). Interrogatories to Parties & Options to Produce Business Record
* Rule 34. Production of Documents
* Rule 34. Production of Documents
* Rule 37. Failure to Make Disclosure or Cooperate in Discovery; Sanctions.
* Rule 45. Subpoena
* Rule 26(c) – Motion for Protective Order

California Code of Civil Procedure: 10:15 a.m to 11:15 a.m

* Amendments to CCP Section 2016 and 2031
* Amendments to CCP Section 2016
* Amendments to CCP Section 2031
* Amendments to CCP Section 2031.050(a)-(c)
* Amendments to CCP Section 2031.060
* Amendments to CCP Section 2031.020
* Amendments to CCP Section 2031.080
* Section 2031.285 Has Been Added To the CCP & Discovery Act
* Amendments to CCP Section 2031.310
* Section 1985.6 Has Been Added To the CCP & Discovery Act
* CCP Section 2017.720
* California Code of Civil Procedure Section 2035.010 (Perpetuation of Testimony or Preservation of Evidence Before Filing Action)
* California’s Notice of Litigation Hold

»Guidelines for State Trial Courts Regarding Discovery of ESI Document Retention Policy (“DRP”): 11:30 a.m to 12:30 p.m.

* Addressing E-Discovery
* Processes & procedures regarding issuance of NLH
* Discussing processes and procedures regarding lifting of NLH

Notice for Litigation Hold

* When should a Notice for Litigation Hold be issues?
* What should a Notice for Litigation Hold State?
* Who should receive the Notice for Litigation Hold?
* How should the Notice for Litigation Hold be issued?
* Why is the Notice for Litigation Hold invaluable?
* Scope of Notice for Litigation Hold?

# Searches, Collections, Analysis, Review & Production of E-Discovery
# Defending against Attacks for Alleged E-Discovery Abuses
# Recommendation

References

• Justia Case page
• Automotive News article
• Toyota Press Release
• Information Overload
• SE Texas Record

I recently posted this response on the LinkedIn ” University of Michigan Law School Alumni” group, on the question of legal outsourcing:

Question :

What are people’s thoughts on legal outsourcing as a way to cut costs for certain routine legal/paralegal tasks such as deposition summaries, document review, broad legal research? Has anyone used such a service? What about using a company with offshore attorneys, e.g. India, Israel, etc.?

My Answer:

Depends on what you mean by “outsourcing.”

As I think about what Agile has to offer the legal profession, the importance of team collocation has become abundantly clear to me. That doesn’t mean that a team should never be ‘distributed,” but it does suggest that lawyers put their teams together with a more coherent strategy than simply buying low and selling high.

Each case needs to have an assessment, completed transparently with the client, on the question of how to create real value for money given the client’s priorities. The folly of doing this without having the team of doc reviewers in on the planning stage never ceases to amaze me.

Right now, my thought is that document review teams should be brought together for the first few days so that they can gel around the mission and standards required for quality. If they need to go away for a few weeks while the rest of the team executes upon their part of the task, that’s fine. But most firms continue to employ the philosophy that doc reviewers are fungible,– a huge disservice to the client.

Only after an internal rhythm is established should the team be disbanded to work remotely. Self-organization is nearly impossible if individuals are spread throughout the world and standards are impossible without some level of human contact.

Yes, cutting cost is important, but it should never be Job 1. Job 1 should always be giving high value for money, with value defined by the client. The gap between cost and perceived value cannot be fixed by simply moving the whole show down on the y-axis.