Electronic Discovery Advice for Small Law Firms

Listen to free advice on electronic discovery from the Hon. John Facciola and a solo practitioner from Colorado, Tom French. This show is intended to explore why there is a gap in knowledge in this field between large law firms and smaller practitioners. What tensions this gap in knowledge can place on the legal system as well as on clients of small law firms when electronically stored information is an issue in a case. Lastly, we will attempt to offer some advice to small law firms and solo practitioners on how to approach getting more comfortable with electronic discovery.

[DDET Click here to read the transcript]
Karl Schieneman, JurInnov -Interviewer

Judge Facciola-Guest

Tom French -Guest

K: Hello, everyone. My name is Karl Schieneman and I’m the Director of Legal Analytics and Review at JurInnov and I’ve been an entrepreneur in the e-discovery case management field for the past 7 years. I’d like to welcome our live guests and future download guests. This is the first of many ESI Bytes Shows. Our goal on ESI Bytes is to offer highly educational content on electronic discovery field, free from vendor pressures to educate. Anyone interested in ESI at a price that anyone can afford, which is free. Since ESI can be an expensive field, which can literally “byte” you, I like to think of this show as a bargain for obtaining information from experts. It’s a bargain not only in price, but also the fact that as a podcast, you can download this show and listen to it and share it with others when you have time. Why not in the e-discovery field move in this direction where you move information around? The goal is to offer an NPR-like program on electronic discovery. Hopefully we’re going to cut through biases to get to the heart of important issues. Any of you who have listened to my past shows on BNA know that getting unbiased information in a collaborative setting is what I’ve always tried to achieve, and hopefully this show is going to keep those core values. Some of these shows will be interviews with experts from around the country to get their insights on electronic discovery and electronic records management. Other shows are going to be like this one where we focus on a unique topic. Let me know if you’re interested in doing a show in the future or if you have ideas. You can email me at kas@jurinnov.com . Now, just a couple of brief housekeeping items: I have a number of questions we’ll get through. At the end of the show, we’re going to take questions. You can either let me know you have a question by hitting *8 on your phone, I’ll un-mute you, you can ask a question, or if you’re logged into a computer, at www.talkshoe.com you can just type your question and I’ll ask it at some point. This show is going to end at about 6 o’clock, in about 45 minutes, so that’s sort of the time frame. Today’s show, the guests are going to cover a vexing problem in electronic discovery field – how to educate small law firms and individual practitioners on electronic discovery. Having run a small virtual law firm for 2 years, I’m familiar with a few pressures that small law firms face to collect from clients, to get clients, to practice law, and get educated. It’s clear to me, from my perspective, that most ESI education has been focused on large law firms and mega companies. In fact, this may be the first presentation anywhere dealing specifically with smaller cases. Our guests have unique perspectives on this topic and they’re both committed to solving this problem. The first guest is the honorable John Facciola, who is a U.S. Magistrate Judge for the U.S. District Court in the District of Columbia. Judge Facciola is well known in the field. His opinions are some of the most widely cited. He writes with clarity, at times great humor, offering guidance sometimes to both parties on how they should be behaving and handling ESI matters. He’s been dubbed the “Italian Stallion” based on his dogged pursuit of missing White House emails and his dedication to seeing that federal archiving laws are being complied with. Some of his best-known cases are:

Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007)
United States v. O’Keefe, No. 06-249 (D.D.C. Feb. 18, 2008)
Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. March 7, 2008)
Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)
He frequently speaks around the country and has graciously given his time to the field to assist with maybe hundreds, or close to hundreds of presentations around the country with The Sedona Conference, Georgetown University, ABA Tech Show, Legal Tech, and many other programs. We’ve both spoken a few times about the unique challenges facing small law firms. Judge Facciola agreed to give some of his time to offer his observations from the bench on a gap of knowledge between big firms and large firms on this topic and what problems this can cause and give some of his advice from his perspective. So thank you, Judge Facciola. Tom French is a solo practitioner based in Fort Collins, CO at the Thomas R. French, P.C. firm. One of his memorable cases, Cache La Poudre Feeds, LLC, v. Land O’Lakes, Inc., he found himself defending the rights of a small client against a billion dollar company in a trademark infringement case. And while he won the case, he had an interesting time navigating the electronic discovery minefields. Since then, you’ve done a number of presentations in this area. We talked about the unique challenges of being David versus Goliath in a presentation I moderated for BNA. In that presentation, we covered sort of a big company versus small party. In this one, we’re going to cover another issue – How do you learn about this when you’re in a small firm? Last thing, if you want to answer each other’s questions, I’m happy if you do that. If I haven’t thought of a question, feel free…this is going to be a dialogue. I’d just like to thank you for joining me on this first show. So the first question is, for some background information, if you could explain how each of you became familiar with ESI. First, Judge Facciola, yourself, and then Tom French.

J.F.: I wish I knew. I was minding my own business when I had one of many cases come before me in the discovery issue. It was called McPeek v. Ashcroft, and it involved backup tapes, which would have been a complete mystery to me. By using the usual tools of a judge, I resolved it. The next thing I knew, I was being accused of creating a theory of marginal utility, which is probably the one thing I learned in economics – forgetting all the rest. From that point on, like any judge, I was confronted by society in which information technology is changing, only on a daily basis. Like everybody else, I’ve had to keep up with it. The only familiarity I can pretend is that I’ve always been interested in computers. I ran my section of the U.S. Attorney’s Office for many years using my own Macintosh. I’ve always been interested in computers, particularly in the area of digital photography. That’s where it comes from. It was humble beginnings, but it’s been a very exciting part of my career.

K: Definitely, and Tom?

T: Well, I’ve spent 30 years as a trial lawyer. I was a prosecutor, first of all, and for 15 years, I’ve done mainly commercial litigation. About 3 years ago, I was involved in a large commercial litigation case in the U.S. District Court in Colorado. This case started before the amendments, the December 2006 amendments to the federal rules came in to being. They came into being and those basically added the three letters of ESI to everybody’s vocabulary if they weren’t there already. So, I had to learn about electronic discovery by doing it. I had a case that involved electronic discovery. It was a big stakes case and I learned about it the way we learn about most new things – by reading, by studying, by getting to work. It’s not magic how I learned it; I just did it by doing it.

K: Why do you think ESI is challenging for lawyers, Judge Facciola?

J.F: Well, there are a couple of reasons. I remember I read somewhere, I don’t know if it was Boras Bittiger or Edwin Griswald said that the passage of the Internal Revenue Code was the most significant development in the law of estate and trust – since the creation of the trust. I think that what the point of that is whatever you thought you knew about estate and trust, before the Internal Revenue Code, you had to learn a whole new area in order to be an affective lawyer. The problem with ESI is it’s a relatively easy thing for us lawyers to stay where we belong. ESI challenges to go where we don’t belong and to learn, as Tom just said, on the fly, concepts that can be quite fearsome in our capability to understand them. The second problem, of course, is that as they say, the technology seems to be changing on a daily basis. I don’t envy where, like Tom, as they come into a case, always is wondering whether he has the adequate technical capabilities to handle this. I mean, there are a million vendors out there trying to sell him the latest things with all the bells and whistles. Again, this has the solution that’s escaped everyone else. It’s particularly challenging because I don’t know how a lawyer keeps his hands on top of this ever-changing information technology.

K: Well, Tom, you were able to show that it could be overcome. What did you find to be the biggest challenge? Do you have anything to add to that?

T: Well, one of my heroes in the e-discovery world is a lawyer in Texas named Craig Ball. And he said,

K: Craig’s gonna to do the next podcast, or he’s already agreed to, but anyway, go ahead.

J.F: He’s first-rate. What he says is everyone wants e-discovery to be simple, but the problem is e-discovery is not simple. It’s complex, it’s technical, and it’s tricky. So, I would never say that it is easy. That’s the basic challenge. It is a brand new discipline, a brand new language, brand new rules, a brand new way of doing things on top of the way we’ve already learned how to do it. So, it’s new and very difficult and it’s not easy. It has everything to be challenging.

K: Well, now we’re scaring all the solo practitioners. We’re making great progress here. When we first talked about this, Judge Facciola, you observed there were many typical mistakes you see with ESI and sometimes-small law firms. What are some of the more common mistakes these days?

J.F: Monday night I was at Fordham, a week ago with Judges Scheindlin, Preska, and Laporte, and we were talking about sanctions. I pointed out then, and I think there was universal agreement that if you read the cases pertaining to sanctions, they seem to fall into two categories: One is under-promising, “Uh, Judge, we can’t possibly do that, uh, that’s crazy.” The best example of that is I remember a judge being told that he couldn’t take Netscape Navigator off of his computer, so he went into his chambers and took Netscape Navigator off his computer. The other problem is over-promising, “Judge, don’t you worry your pretty little head. We’ll get this done in 30 days.” The person who uttered that has now idea what she is getting herself into. In both of those, the terrible thing is the lawyer, by virtue of no having to tackle the capability of a truthful or honest representation gets away with the representation. There is nothing worse a lawyer can do than destroy his credibility. From that point, she has put herself in a hole and can only dig out. So, in my view, the most common mistake is making representations to the court without carefully understanding the technology involved and what this is going to cost, how much time it’s going to take. Constantly being surprised by ever-moving goal posts; how much time is needed to do things, what kind of technical capability is needed to do things, is about the worse way to approach these questions.

T.F.: Judge, if I can segway into this, one of the big differences, I think, for e-discovery is, I think that it changes when you get consultants involved in your cases. I think what it means is that you need to get a consultant involved on your behalf, not an expert, but a consultant to help you in e-discovery early on.

J.F: Yeah, I’m glad you said that because Judge Paul Grimm and I, we, in our emphasis on the lawyers needing technical capability, it’s been said of us, behind our backs I’m sure, that we’re the best thing that happened to vendors since they started putting their names on their t-shirts, so I’m glad you said that.

T.F.: I’m a one-man band. I usually get hired by other firms to do their trial work, but I’m acutely aware of cost considerations, but you, it’s almost an unequivocal rule that you have to have somebody help you out that knows more than you do about computers. You gotta hire somebody early on, and we’ll talk about why that is later, but you have to hire somebody early, early on so you know what you have, and so you can produce and so you’ll know what to ask for as well.

J.F.: Exactly.

K: Yeah, actually, we can jump into the cost question right away. This is sort of the big question I think some of the small lawyers are concerned about. If we accept there’s a serious problem here, how do we get ESI knowledge into the hands of small law firms who have no money and are pressed for time constantly? Especially because there are many jokes about small practitioner’s. They’re often jacks-of-all-trades, masters of none. Tom, how do you advise people who are on budgets to get a handle on this area?

T.F.: Well, don’t take the case if you don’t have some money. That’s kind of what it boils down to and that sounds pretty elitist, that big rich people get to take these cases. Well, that’s kind of the world that we are in. It’s a more expensive world to do discovery and get cases ready than it used to be. There’s no question about that. Most of the serious e-discovery bytes that I’ve been involved in have been in U.S. District Courts. Those are almost, by definition, more expensive cases. I say, don’t get involved in those bigger, more expensive cases unless your client can carry the freight, or you can carry the freight because it is going to cost you more than you think it’s going to cost you.

J.F: I couldn’t agree with Tom more. Now, from a judicial perspective, this is not good news. I mean, in McPeek I said I was terrified of what was happening here. That we were going to have a federal court system in which we were spending $300, 000 to search for a single email. I questioned whether a court system could survive that with a disproportion in resources to a result that had nothing to do with the justice of the cause.

K: Your Honor, I have to ask this question and lead into your answer right now. I thought of McPeek v. Aschcroft. Your great quote in that case that I think is often cited is, “American lawyers engaged in discovery have never been accused of asking for too little. To the contrary of the Rolling Stones, they hope that if they ask for what they want, they will get what they need.” I think the corollary for small firms is the concern that George Harrison wrote, is “it’s gonna take money, a whole lot of spending money to do it, to do, to do it, to do it, to do it, to do it right child.”

J.F: But Tom is quite right. It’s not something that we should all get up and cheer about. Something is badly wrong here and it’s going to take an extraordinarily devoted and conscientious judiciary to make sure that its balance is somehow righted. Certainly, one survey I’ve seen which is relatively recent, by the American College of Trial Lawyers, again is saying that expense is out of all proportion to what the case may be about. We are rolling a rock, a very big rock, up a very long hill. Only time will tell when we’re going to get there. If we’re wrong, there’s a lot at stake. If we’re wrong and people are going to continue to jump away from judicial forums to other forums to the resolution of their civil disputes. If this is done on the basis of wealth, then we have really failed as judges.

K: All right. Tom, you’ve been in David versus Goliath situations, and Judge you’ve gotten to see firms of all sizes in front of you. Do you see any gap in ability to work with electronic discovery between large firms and small firms?

T.F: Well, I’m usually the small guy going against the big guy, so that’s the only situation I can usually talk about. I’ve been involved in serious litigation against the U.S. Government. Obviously, that’s about as big as it gets. Quite frankly, what I see it more as is a gap between good lawyers and bad lawyers. I mean, good lawyers know the rules, good lawyers know what they’re suppose to do, good lawyers won’t get involved in litigation and make promises that they can’t meet. Bad lawyers have all of those infirmities. (They) have all of those problems. I think it’s just a matter of if you’re in a small firm, you better learn the rules, you better figure out what the rules are. Get involved in the case if you want to and if you can afford it. The cool thing is, the silver lining for me is, if you have a small client there are lots of huge advantages to going against a Goliath because if you don’t have any paper and they have lots of paper, it’s the best of all worlds, I think. It’s a great situation. You may be setting them up for all kinds of sanctions and doing the wrong thing, and you don’t have any paper that you have to worry about. That’s one of the reasons why I like doing the David versus Goliath kinds of cases.

J.F.: Well, Tom’s quite right, but it’s an interesting development in case law that David has got as many problems as Goliath. We are now dealing with electronically encumbered plaintiff, you know. The one who has the Facebook account where those pictures that he doesn’t realize how they’re going to be used against him in litigation, and so forth. Then we have the electronically encumbered plaintiff who uses both the boss’ computer for the boss’ work and her work who has a personal computer. So I think lawyers have to appreciate this is now a knife that cuts both ways. I think that when they talk to their clients, there must be some clear understanding about what’s out there that this lawyer should be worried about. Tom and I are both trial lawyers and I know what Tom says to his client in that first meeting, and that’s this, “I don’t want any surprises.” Is that right, Tom?

T.F.: Absolutely.

J.F.: So, that’s a whole new area that a law practitioner has to think about a lot. “Okay, I’m going to ask for this, but what are they going to ask from me and am I ready to handle that? What’s out there? What has this person told the world in an email and Facebook and MySpace? What’s out there?”

K: And it was perhaps unfair to ask that Tom jump in and answer the question first because he liked being David. Judge Facciola, you get to see firms of all sizes in front of you. Do you see any gaps in ability to work in electronic discovery between large firms and small firms?

J.F: Well, I have seen development, now a national development, that some of the larger national firms are developing in extensive in-house capacity with electronic discovery shops. So, I do see, not merely in terms of big and small, but I do see the firms that have decided that this is a profit center and intend to build it up. Those people really have a significant advantage. They have that advantage because the market has indicated that there is a market for them. As Tom said, I think big and small is not the whole story. Effective use of the resources you have is infinitely more important. But is there a discrepancy? Yeah. Is it narrowing? No, I’m afraid it isn’t. It’s getting bigger. In other words, there are people who have opted out of this situation. I think Tom agrees (that) they’re heading for trouble. They’re just heading for trouble and it’s very, very scary in terms of what disciplinary authorities may do to them. If they blow a case because they just don’t know what they’re doing.

T.F.: Yeah, I don’t know how you can opt out of electronic discovery. It’s like saying, “I’m gonna opt out of the rules of evidence,” or, “I don’t want the rule against perpetuities to be involved because it’s too hard,” That doesn’t work. You just can’t do that.

K: Tom, since many lawyers listening to this show may not have any experience with electronic discovery, can you offer a brief overview on the steps in a case where electronically stored information can be an issue and how you’d sort of approach it?

T.F.: The first thing you’d do is…I think you’ve gotta find out what you’ve got. That may typically require hiring an outside vendor unless you have a very sophisticated, intellectual IT person who works for your client. You’ve gotta find out what got. You’ve gotta find out what your information systems are because there will be reciprocal ESI obligations which mean that you’re going to have to produce your ESI – electronically stored information, and the other side is going to have to do the same. The first thing you’ve gotta do, I think, is figure out what you’ve got. Unless you’re very sophisticated, you can’t do that yourself. The next thing that may have happened already is that you may have already gotten an evidence preservation letter from the other side, which means that the other side is saying, “You better hold on to all your ESI”. You’re probably going to have to evaluate what your evidence preservation obligations are, and you may have to put into place what’s called a “litigation hold”, which means that you can’t destroy any of the ESI during the course of the litigation. The other thing that’s really critical is under Rule 26, which is what I call the “meet and greet” obligation, which used to be or often is a joke. You’re suppose to talk to the other side about what’s going on and what the discovery is, and you kind of blow that off or you have a 5 minute conversation. It’s harder to do that these days because Rule 26 now requires you to talk with the other side before the scheduling order and realistically talk about discovery issues. If you don’t know what you have, and you don’t know what it means and you don’t know where it is in terms of electronic discovery, you can’t possibly have a meaningful “meet and greet”. What difference does it make? Well, at the scheduling conference the judge is going to enter orders having to do with what discovery will be produced, what format, what has to be retained…so, what this means is that early on you have to have a very good handle on what electronic discovery your client has.

K: Okay. Judge Facciola, one of the things that I found with lawyers is that their often times scared of technology just in general. Based on some of the experiences I’ve had with small firms is that I’ve found it’s almost an epidemic amongst small firms. How do we help firms and lawyers become more comfortable with technology?

J.F: Well, I think it has to start…it probably has to start…one of the things, I don’t know if Tom agrees, that is stressing to me is, when I thought about this I thought that the young kids coming out of law school – the Nintendo generation, that they would have a greater capability. But when I’ve talked with them, they tell me there has been absolutely no emphasis in law school on the technical side of the legal issues they are asked to confront. It’s all very ethereal and briefs and so forth and so on. When they go into the market place, they’re overwhelmed that the market curve for them is just as bad as it is everywhere else. I think that we’re going to have to go back to basics and see how we can increase it. As Tom has said, there’s nothing any of us can do about this. As Tom just said, “Well, let’s not have any electronic discovery in this case.” Pal, Jiffy Lube has a computer, and there’s nothing you and I can do about that. So, I can’t imagine that 100 years ago lawyers were saying, “Gee, I don’t want to learn any of that stuff about airplanes, because God, I don’t know anything about airplanes,” or 200 years ago, “I don’t know anything about railroads.” One of the great things about being a lawyer and one of the reasons society looks to us for leadership in this area is that we have shown a remarkable ability to adapt to the law that’s changing society around us. That’s what we’re supposed to be doing. How do we get an exemption from that? There is no answer. There is no magic wand that Tom nor I have that we’re going to push over you and tomorrow you’re going to walk into the office and understand this stuff. You’re going to have to get the books out. You’re going to have to talk to people. You’re going to have to educate yourself in every way. I don’t know, and that’s just as true of judges as it is of lawyers.

K: Tom, you mentioned that you need an expert right away in some of your early cases. Is that something that’s challenging to pay for, or do you have to do this?

T.F.: Well, you know, have to? I don’t know. Is it a really good idea? Sure. Does it put you ahead of the game or at least where you need to be? Yes. How do you pay for it? You know, you gotta pay for it. Either the lawyer pays for upfront and gets the client to pay him later on or the client has to pay for it upfront. It’s one of those deals. The truth is, I don’t see in state courts or in criminal cases, I don’t see much electronic discovery worry or concern going on. It is, in my experience, it is largely in district courts. I guess that’s kind of good news in a way, but it’s also kind of frightening in a way because the electronic discovery issues are in cases that are in the state courts and the criminal cases even if they aren’t getting the attention that they’re getting in the U.S. district courts.

J.F: We’re seeing a very curious phenomena here. In the state courts, there is a general fear that this is going to be hideously expensive. At one point in our history, the states would simply take the federal rules of evidence and incorporate that into their law. Well, that is happening in some states, but other states are bucking and are very concerned that left of its own devices, this could swallow their system because the expense of electronic discovery will be out of all proportion to the cases before them. That’s a development that has to be watched very, very carefully in terms of the state courts and where they’re going to go because they’re already terribly under-resourced in terms of their physical capabilities and where their housed and all of that. If they’re left out of this process, it could have a very devastating impact on the justice that most people in our society call upon.

K: I’ll give you a question that a family lawyer asked me to ask that ties right into that. He recognized your reputation in the field, Judge Facciola. He was concerned about appearing in state court where opinions can sometimes be more political because it’s a political position often times and this attorney thinks that they can prove spoliation. They don’t want invest in the work if the judge is just going to yawn and move on to the next part of the case. That’s one of the, that’s a political concern. How do you educate judges on electronic discovery? So, you’re left fearful on that.

J.F: You have to devote the resources to the problem. The resources to the problem take a lot of different forms. You have to not only support the judge financially so he can attend Sedona or listen to podcasts or what else. You also have to give her sufficient time to do it, and you also have to work on integrating them into what the bar is doing in this area so it becomes natural and normal. Judicial education is difficult given the burden that most state court judges have which are absolutely impossible calendars. It’s a challenge for the states and the states are going to have to rise up and beat it or I don’t believe we can have a society that is sophisticated electronically and a judiciary that isn’t. I don’t know how you do that.

K: Yeah, actually I don’t want to forget that. I want to do a show on educating judges because podcasts are really ideal for that. They’re free and you can download them on a different day.

J.F: It’s been my constant experience with judicial education, first of all is, you’ve gotta get the judges out of their court house and isolate them in some place because there’s too much temptation to run upstairs. That’s the way the federal judiciary does it. There’s extremely important ways to doing it. Vote 2 days to nothing but learning this area. That’s crucial.

T.F.: Now maybe that’s a nice sag way because I think if I were listening to this and I didn’t know, or if I was a new-bee – if I was just trying to figure out what was going with discovery I’d be saying, “Well, what do I really need to do?” Here’s what I did: I read the rules. I read the amendments to the rules. I read the comments to the rules – to the new rules. That’s sounds kind of basic, but that’s what I did. Then, I read everything I could get my hands on the Craig Ball wrote. Go to www.craigball.com . I don’t get any money for saying this, but Craig Ball knows what he’s doing. He’s a lawyer in Texas. He used to have a trial practice, but he doesn’t do that anymore. He’s a forensic expert now. He knows what he’s doing. Read everything on his website because it’s really good stuff. Then, get a copy of the presumptive order on governing electronic discovery that judges like Magistrate Judge Schaeffer and the District Court of Colorado enters in every case is presumptive order, then you will find out what he expects for electronic discovery. U.S. District Court case in Colorado. You can find it on Pacer: 07CV2223. Read his presumptive order regarding electronic discovery. That will let you know what you need to know. Those are good places to start, I think.

J.F.: Also, I think there’s something very important here. If you compare at this point in history with other points in the history of the development of the practice law in America, can you ever imagine a time when there were more resources that you could prevail upon? You have this remarkable thing on your desk that searches all of information in the world. There are now sophisticated groups like Sedona and Georgetown that are producing excellent materials that are also available on the web. There are several law firms and other people who simply have on a daily basis are producing the recent developments in the law. There are wonderful blogs like Craig Ball’s and Ralph Losey’s. I think that the exact converse is true. There’s probably never been a point in the education of lawyers where they’ve had more free and wonderful resources at their command. Not taking advantage of that is very hard to understand.

T.F.: The Judge has mentioned a number of times The Sedona Conference. The Sedona Conference, I’m not a member of that, but it’s kind of, among other things, and electronic discovery think-tank. I think their website is www.sedonaconference.org . They have kind of like, presumptive rules or suggested rules, kind of like the re-statement about electronic discovery. These are the guys who think about those hard issues and come up with the rules. If you want to learn more about where things are going with electronic discovery, what the people think about it and where they think we should be going, go to www.sedonaconference.org .

J.F.: In the interest of full disclosure, I should say that I’m on the Advisory Board of The Sedona Conference with somebody named Craig Ball.

K: Hey, you can also get an rss feed to this show now that we’ll be doing more and more of these. Anyway, you know going back to McPeek, I suppose getting more of a laser on what you’re involved in, or what’s involved in your case. I know right the inclination for a lot of people is just to opt out of ESI in smaller cases. There are times when that makes sense and there are times when this is just a really bad idea.

J.F: Look, there’s no law that says there has to be electronic discovery in every case. Obviously, there are case in which it’s not going to be called for. The whole trust of the federal rules – the amendments, was a notion of proportion. Electronic discovery, which would be no greater than is necessary to do what discovery does. I don’t think it’s a question of opting out or opting in. If you opt out, you may be ignoring something terribly significant. For example, you could argue I suppose that this is a domestic relations case that doesn’t involve electronic discovery. Think for a minute. The family banks on the internet. They communicate with the outside world through their email. I understand when things go poorly and the wife thinks that the husband is cheating; she’s been known to put a GPS in his hubcap. Strangely, in a way that I find hard, I’m reading that electronic discovery is becoming very important in domestic relations cases. When you opt out of this, and you and the person on the other side say you’re not going to go there, you had better be very careful. If it emerges or develops that there was something there that was terribly significant, I don’t know what you’d tell your malpractice carrier when they ask, “What did you do,” and you say, “Well, the other guy and I agreed not to go there.”

K: I was talking recently with a small law firm, about 20 attorneys, not quite a solo practitioner, but still struggling with this area. They were in a situation where they subpoenaed a third party for email in one of their documentary requests and received zero emails. They’re not sure what to do. Clearly, there should have been some email provided, but what do you do when you don’t have an email-driven case but you think the other side’s lying and being unresponsive and it’s a small case? Zubalake got really interesting when emails weren’t produced, and searched the back-up tape of the third parties. These are the things that lawyers are dealing with out there that haven’t dealt with this issue before.

T.F.: If you have somebody who’s an expert and can talk about the likelihood that there would be no email in this situation, which is no likelihood at all – is that expensive? Yeah. You could file a motion to compel, you could write a compelling brief to the judge explaining why in this world that it simply doesn’t make sense and there should be an email. Fascinating statistics about the number of emails in this world that are sent everyday, how all of us send everyday in the range of 15-20 pieces of electronic communication a day. All those kinds of things, you use your creativity, you use your money if you have to. Judges aren’t stupid if they realize that the likelihood of zero emails is zero. They’re not dumb. They know what’s going on.

J.F.: I think, also, that as Tom was saying, you can’t participate in a realistic and intelligent discussion with the lawyer on the other side if you don’t know what you’re doing. Before you get to the subpoena stage, I think you should pick up the phone to the other side and say, “Here’s what I need. Can you help me and can we work this out somehow?” You’ll be amazed how willing the other side is to do that. They want to avoid a giant expense as much as you do. This situation, if they have stonewalled you like this, then Tom’s advice is perfect. You’ve got to go to the wall. Our society is saying that an organization of this size doesn’t have email, then it’s going to be a very hard sale for the judiciary. If you’ve gotten to that point of confrontation, maybe you’ve missed the ball a little earlier on. This whole party thing, of third party subpoenas and the cost was very much a problem for the draftsman of the federal rules amendment. If you read the advisory’s comments on the additions to amendments they’ve made to Rule 45, they emphasized how important it is to diminish the burden on third parties. There’s a very interesting case that came out of our circuit just this past month, maybe it was January, but it’s called In Re Fannie May Security Litigation. I don’t want to bore everyone to tears, but it’s an interesting case to look at to see what happens when a third party gets in the middle of this. As they say, “When the elephants stamp, the Earth trembles.” When time was over, this one little agency had spent millions of dollars trying to comply with a single subpoena. When you find yourself in this Rule 45 context, and you’re either going after the third party or you are the third party, bear in mind that the courts are probably going to insist that you put the burden on that third party be no greater than it absolutely has to be.

K: Okay, we’re into what we said would be the last 10 minutes of the show, so I’m going to start asking a couple of the questions that people had emailed me before the show. Tom, do you have any suggestions for small firms in terms of investing in hardware or software to be prepared to handle a case in electronic discovery? Things like document management,

T.F.: You know, well, the truth is, Adobe Acrobat isn’t very good unless you have millions of documents. If you have hundreds of thousands of documents, Adobe Acrobat won’t work. But Adobe Acrobat is a very stable, very good platform for most of my cases. That’s what I use for most of my cases. I don’t use the fancy platforms. If you have a big case with tens of thousands or hundreds of thousands or more documents, then you may need to go with software like Summation. Summation basically requires someone to enter data in about all of your exhibits, but then you can find it and do searches and all sorts of very cool, but very expensive stuff. I say, don’t go to Summation unless you pretty convinced that Adobe Acrobat and .pdf’s are not going to work for you. It will work in most of my cases, so it will probably work in most cases except the very big ones.

K: Okay. I’ll ask your opinion, Judge Facciola, on this question. As a corporate lawyer who doesn’t litigate but represents many business owners – they want to be in a position to advise their clients on electronic discovery and record management, do you have any suggestions for corporate lawyers?

J.F.: That’s welcome news. If Tom and I could tell you one thing, if the infinitely easier to work on these problems before they get into litigation than it is after litigation. I think what has happened so dramatically in this area is corporate counsel is now being involved very early on in the creation of universal records management policies that will meet the company needs whenever litigation comes. As recently as an hour ago, I was conferencing with some very sophisticated people in this area. They said that this is the way that technology is going, that corporations cannot pay outside counsel the fees that they want, particularly in this burdened economy. Now, the whole records management is going in-house with the lawyer playing a very significant role in its creation and its justification. The theory being, if we can find it in-house for our own purposes, then we should be able to meet any discovery demand made upon us. That’s infinitely easier doing it right in the first place than trying to scramble into it right after you get sued when a lot of eggs have been scrambled. So that lawyer is in a very happy position, I think. I’d be in my client’s office tomorrow morning at about 9:30 telling them, thank God. How do we set this up? What do you want to do?

K: Okay. Alright, that’s

T.F.: Let me just say that there’s also even a thing called the Association Records Management and Administrators,

K: That’s right, ARMA.

T.F.: Yeah. You know, that’s one of the things you can do is go to these folks and get involved with them. See what they’re doing. You don’t have to reinvent the wheel if it’s already been invented.

J.F.: There are other associations that are growing up in this area of in-house counseling in electronic discovery. I don’t know all of their names, but they are based in some of the large cities. These are lawyers who, from an in-house perspective, get together with mutual concerns. The produce a lot of good information through this agency, and I apologize for not know its name for that lawyer who I’m sure can find it through the web. There is a specific association of in-house counsel who concern themselves with electronic discovery.

K: Okay. Well, I don’t know if there are any questions from the audience. You can hit *8 and I will certainly ask your question. One last question just to give someone else a chance to think of a question…Judge Facciola, you had talked about some of the ethical issues or concerns that if someone, if a lawyer doesn’t know this area, can the handle a case? Do you see these situations from your perspective where you think people are close to this?

J.F.: Yes. I have seen it in one hearing before me. I saw it with my own eyes – the sanctions for child pornography are ferocious with many years in prison. We’re dealing with a case where an FBI agent posed as a 12-year old girl and was instant messaging with a guy who was trying to solicit across state lines. The guy answered the question of instant messaging and how this was recorded and being managed, and the lawyer got up and said, “You know Judge, I just don’t understand this computer stuff.” Well, that’s a violation of the 6th Amendment. I can’t think of a more obvious example of how ineffective the assistance of counsel. That’s really scary. The other ethical issue, and it’s a fascinating one, is when the shoe was on the other foot, which is – you know more than the opposing counsel. The question is whether you can exploit his ignorance. For example, if he proposes a search terms, and you know very well they can’t possibly find what he is looking for, are you under some obligation to direct him? In a recent symposium at Mercer Law School in Georgia, Jason Baron devoted his thinking to this issue in an article that I hoped will be published. There is, or I know that Tom thinks, there is this business of taking advantage of the other person’s ignorance that raises some tough, tough legal issues in the context of an adversarial system.

K: And you know, the whole thing that led me down this path of small versus big, which I think is an interesting thread and small in general, was at a conference where everyone was talking about “meet and confers” and how you’ve gotta collaborate and work with each other. I said, “What if one side is bigger than the other?” There was laughter. You’ve got to help the other side. I think that you’re right; it’s a challenge – an interesting challenge.

J.F.: There’s one argument to be made that it’s an adversarial system and if he doesn’t know what he’s doing then it’s his problem. There’s another side that says, well, an adversarial system is tempered by a notion of professionalism and collaboration.

T.F.: Yeah. We are initially Officers of the Court.

J.F.: That’s right.

K: Okay. Well, I don’t see any questions popping up here. I want to thank both of you for hopefully helping start a fire of information helping some of the smaller firms; sole practitioners get more comfortable with this. You know, any last thoughts you want to emphasize? Any one of you and we’ll call it a day?

T.F.: I say, don’t be too scared by electronic discovery. I think it’s another fascinating area about what you need to become an expert, which is why I like being a lawyer. I mean, you get to be an expert about all these things that you don’t know about. Take that as a challenge and a cool thing as something to keep you fresh, invigorous even though you’ve been doing this for a while.

J.F.: Down the line, Tom’s point – isn’t that why we became lawyers in the first place? We wanted a generalized way of looking at the world and coming at it from a lot of different angles. Hey, we conquered the world in Shelly’s case for crying’ out loud. The rest is easy, right?

K: All right. On Shelly’s Rule and analogy, we’ll end the show. I’m going to stop the recording and if you guys just want to hang on one more minute that would be great. Thanks everyone and these shows will be housed at www.esibytes.com probably in about 3 or 4 weeks. Thanks again

Recorded 03/02/2009


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