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This New Pilot Program Can Speed Up Discovery, Especially in Arizona and Illinois: eDiscovery Best Practices

At its meeting in September of 2016, the Judicial Conference of the United States approved a pilot program to test procedures requiring mandatory initial discovery before the commencement of party-directed discovery in civil cases.  Now, that pilot program – the Mandatory Initial Discovery Pilot Program – is already in use in Arizona and Illinois.

The Mandatory Initial Discovery (MIDPP) Pilot Program has been designed to test whether early substantial disclosure of information can reduce litigation costs and shorten the time for case resolution consistent with the goals of Rule 1 of the Federal Rules of Civil Procedure, which requires the court and the parties to employ the rules “to secure the just, speedy, and inexpensive determination” of every case.

As noted in the Above the Law article (Holy Early Discovery, Batman! You’ll Want To Know About This, written by Kelly Twigger), the District of Arizona (effective May 1) and the Northern District of Illinois (effective June 1) “have adopted the MID pilot project for three years. The pilot requires parties to produce all discovery in support of their case (consistent with Rule 26(a)) but ALSO all discovery that is relevant to the opposing parties’ claims and/or defenses. And wait, it gets better — responses have to be filed within 30 days of filing an answer (which everyone now has to do) and documents must be produced 40 days later.”

And, as the description “mandatory” implies, the MIDPP will apply to all civil cases in the volunteer courts, subject to certain specific exemptions.  According to Twigger, those exemptions are “pro se cases, PLSRA matters, MDL matters, and patent cases.”

The Federal Judicial Center site provides several resources regarding the MID Pilot program here, including:

There is also a Checklist page and a Users’ Manual page that provides a general checklist and user’s manual for the MIDPP, as well as specific checklists and user’s manuals for the District of Arizona and the Northern District of Illinois.

So, what do you think?  Will the Mandatory Initial Discovery Pilot Program lead to a speedier and more proportional discovery cycle?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Give yourself a pat on the back if you recognize the movie where the graphic came from – Copyright © Paramount Pictures.  Don’t recognize it?  Surely, you can’t be serious!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Tenth Annual eDiscovery Training Academy at Georgetown Law is Next Month: eDiscovery Best Practices

I’ve been remiss in not covering this before now, but the 10th Annual eDiscovery Training Academy will be coming up in a couple of weeks at the Georgetown University Law Center.  If you want a really in-depth training course with highly respected and knowledgeable instructors, this is as good a course as there is.

This year’s academy begins on Sunday, June 4, goes through Friday, June 9 and is designed to “fully immerse you in the subject of eDiscovery”. It features a highly personalized and interactive instructional approach designed to foster an intense connection among students, and one “where you will be essentially an apprentice: observing closely, questioning thoroughly, and intimately understanding the approach and knowledge of experts in the craft.”  Those experts are a renowned faculty including Craig D. Ball, Maura R. Grossman, Thomas O’Connor, and Mark S. Sidoti. Retired Magistrate Judge John M. Facciola will also provide additional guidance from a judicial and pragmatic point of view.

The program includes hands-on practice with tools and data at your computer, organized into exercises designed to help you become more comfortable and adept with both the fundamentals and intricacies of ESI.  And, you will learn about and discuss legal issues and concepts, including technology-assisted review, quality assurance, sampling, “legal hold” analysis, the use of Federal Rule of Evidence 502 to minimize the risks of inadvertent disclosure, attorney-client privilege, work product and limitations on waiver, and analyses of cost allocation, proportionality, and “not reasonably accessible” issues.

If you’re in big need of CLE credit hours, you get 26 credit hours (31.2, if your state uses a 50 minute credit hour), which includes 1.2 hours of ethics credit.  Georgetown Law is an accredited CLE provider in most MCLE states.

Click here for pricing information and to register.  There are discounts for Georgetown Law Alumni and Government employees, so, if you’re in one of those groups, you’re eligible for considerable savings.  If you’re interested in attending, time is of the essence – the Academy is limited to 60 participants, so register as soon as possible to reserve your place.

So, what do you think?  Have you been looking for comprehensive eDiscovery training for you or your staff? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Tells Litigants “NO MORE WARNINGS” When It Comes to Boilerplate Discovery Objections: eDiscovery Case Law

In Liguria Foods, Inc. v. Griffith Laboratories, Inc., C 14-3041-MWB (N.D. Iowa Mar. 13, 2017), Iowa District Judge Mark W. Bennett declined to sanction the parties for issuing boilerplate objections, but strongly warned them that the use of boilerplate objections in the future would place counsel and their clients at risk for significant sanctions.

In this case related to millions of dollars’ worth of sausage that turned rancid, it became apparent to the Judge Bennett (during a review of another discovery dispute) that both parties had submitted “obstructionist discovery responses” to each other during the discovery process.  On January 27, 2017, Judge Bennett entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing, directing the parties to file, under seal, all their written responses to each other’s discovery requests by the following day. Judge Bennett also notified counsel of his intention to impose sanctions on every attorney who signed the discovery responses, if he determined that the responses were, indeed, improper or abusive

The parties filed their written responses to discovery requests, as directed, the following day.  Based on his review of the discovery responses, Judge Bennett identified numerous discovery responses, from both sides, that he identified as improper in this ruling.  According to Judge Bennett, the improper objections included:

  • “not reasonably calculated to lead to the discovery of admissible evidence”;
  • “subject to and without waiving its general and specific objections”;
  • “to the extent they seek information that is protected from discovery under the attorney-client privilege, the attorney work-product doctrine or is otherwise privileged or protected from disclosure”; and
  • “overbroad and unduly burdensome.”

In its brief in response to the Order To Show Cause, the plaintiff acknowledged that many of its objections were not stated with specificity, but asserted that it had not interposed any objection “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” and that some of its objections did include explanations.  The defendant, in its brief, stated that its written responses to the plaintiff’s discovery requests were not intended for any improper purposes and that the parties had conducted the litigation in a cooperative and professional manner. The defendant also noted that a magistrate judge had reviewed various defendant responses and found no fault with them, contending that that both parties relied on standard “boilerplate” language to assure that they were not waiving their rights while they met and conferred about the scope of privileges, pertinent time periods, among other issues.

Both sets of counsel ultimately admitted that the reason they used “boilerplate” objections had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the “culture” that routinely involved the use of such “standardized” responses.

Judge Bennett evaluated each boilerplate objections, identifying violations of Rule 26(d), 26(b)(5)(A)(iii) and the “specificity” requirements of Rules 33(b)(4) and 34(b)(2).  However, in part because the parties “did not try to raise frivolous defenses for their conduct when called on” the use of “boilerplate” sanctions, Judge Bennett declined to sanction the parties this time.  Instead, he provided a new Supplemental Trial Management Order, advising the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis.”

Judge Bennett also concluded his order with these strong words, in caps for emphasis: “NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.”

Here’s another recent case where parties were warned about “boilerplate” objections.

So, what do you think?  Will we someday get past the issue of lawyers using standard, “boilerplate” objections in discovery responses?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Today’s the Day to Find Out What Every Attorney Should Know About eDiscovery in 2017: eDiscovery Trends

If you’ve missed earlier opportunities to find out what every attorney should know about eDiscovery in 2017, you get another opportunity today, thanks to our friends at ACEDS!

Today’s ACEDS webinar at noon CT (1pm ET, 10am PT) is titled (oddly enough) What Every Attorney Should Know About eDiscovery in 2017.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers a lot of things attorneys need to know in eDiscovery today, including:

  • Key Terms
  • Phases of the EDRM
  • Rules Regarding Electronically Stored Information (ESI)
  • Competency Ethical Duties of Attorneys Regarding eDiscovery
  • Top Ten Important Cases in the Evolution of eDiscovery Best Practices
  • Useful Resources for eDiscovery Continued Education

The webcast is CLE approved in Texas, with 1.0 hours of CLE credit, with 0.25 hours of Ethics credit.  To obtain approval in Texas, you will need to send your information (along with bar number) after the webcast to Karen at kdesouza@cloudnine.com, so that she can log your credit hour.  Other states may offer reciprocity credit for CLE approved in Texas, so check with your State Bar for more information.

Let’s face it, managing discovery is more complicated and expensive than ever, with more data and documents to manage, new sources and types of data to consider, and changing Federal and State rules.  This webinar can help you learn what you need to know to stay on top of it all.

To sign up for today’s webcast, click here.  Hope to see you there!

So, what do you think?  Do you feel like you need help understanding the eDiscovery process and what courts expect?  If so, please feel free to join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

After Metadata Shows Agreement Documents to Be Unreliable, Defendant’s “Hans” are Tied: eDiscovery Case Law

In Ensing v. Ensing, et. al., No. 12591 (Del. Court of Chancery, Mar. 6, 2017), Vice Chancellor Slights ruled for the plaintiff in the case and concluding that the defendant “has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, ordering him to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.

Case Background

This case arose between a divorcing husband and wife operating a winery and boutique hotel in Italy (indirectly through two Delaware limited liability companies) when the husband (Dr. Hans Ensing) tried to remove the wife (Sara Ensing) and appoint himself as manager of one of the entities, and then engage in a series of transactions intended to divest Sara of her interests in the winery and hotel.  As a result, Sara (now the plaintiff) initiated action against her husband (now the defendant) in this case in July 2016.

During the case, the defendant produced a “Pledge Agreement” and a “Trust Agreement” purportedly executed by the plaintiff and defendant, making the defendant manager of one of the entities and allowing him to appoint the management for that entity. The plaintiff denied ever signing the agreement and claimed they were “forgeries”.  In response to the plaintiff’s claims that the documents were “forgeries,” the defendant told the court that he intended to have “certified copies” of the documents “prepared at the U. S. Embassy in Rome (which never happened) and claimed during an October deposition that a lawyer and accountant had been instrumental in forming the entities (but he couldn’t provide contact information for the accountant or even his nationality).

The defendant also could not produce the originals of either of the disputed documents, but continued to argue that both documents were evidence in his favor.  The defendant also ignored the court’s order to turn over the devices on which he testified that he had created and stored the agreements, leading the court to grant the plaintiff’s motion to draw an adverse inference against the defendant, putting the burden on him to prove the two agreements were authentic.

Then, on the eve of trial, the defendant attempted to distance himself from both documents. Nonetheless, the plaintiff offered evidence that the company stamp appearing above her name on the Pledge Agreement wasn’t created until 2015, but the document was created in 2012 and had a computer forensic expert testify that the metadata from the Trust Agreement PDF file revealed that it was created on June 15, 2016, and then emailed to the plaintiff thirty minutes later.

Vice Chancellor’s Ruling

Vice Chancellor Slights stated: “After carefully reviewing the evidence, I conclude that Sara has carried her burden of proving that Hans had no authority to remove her as manager of the entities, to appoint himself as manager of the entities or to transfer membership units of one of the entities to an entity under his control.”  Vice Chancellor Slights also concluded that “Hans has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, referencing the two agreements as “sham documents”.  As a result, Vice Chancellor Slights also ordered the defendant to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.

So, what do you think?  Does it seem like there are more cases than ever with potentially altered or forged ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Putting Information on File Share Site without Protection Waives Privilege, Court Rules: eDiscovery Case Law

In Harleysville Insurance Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017), Virginia Magistrate Judge Pamela Meade Sargent ruled that the plaintiff’s placement of privileged information on a file share site and distribution of the hyperlink to access that information without providing any protection for the site resulted in a failure to take reasonable steps to protect the information – as a result, the declared attorney-client privilege and work-product protections were waived.  Judge Sargent also denied the plaintiff’s motion to disqualify defense counsel for accessing the information without informing plaintiff’s counsel, but did order defense counsel to pay the plaintiff’s fees and costs in bringing the motion.

Case Background

In this dispute over a fire insurance claim by the defendants against the plaintiff insurance agent, a senior investigator for Nationwide Insurance, owner of the plaintiff company, uploaded surveillance footage to a file share service operated by Box, Inc. and sent an email containing a link to the site to an investigator at the National Insurance Crime Bureau (“NICB”) in September 2015.  The email contained a confidentiality notice indicating that the “e-mail contains information that is privileged and confidential”.  The information on Box was not password protected, but, for a while, only the video was available on the Box site.  The plaintiff conceded that any person who used the hyperlink to access the Box Site had access to the electronic information stored there as it was not password protected.

In April 2016, the Nationwide investigator placed files containing the plaintiff’s entire claims file and Nationwide’s entire investigation file for the defendants’ fire loss on the Box Site to be accessed by the plaintiff’s counsel.  Then, in May 2016, in response to a subpoena, the NICB electronically produced its files – including the email containing the link – to the defense counsel, which gave them access to the file share site containing the claims files.  Defense counsel subsequently accessed the site and reviewed and downloaded the entire claims file, but did not notify the plaintiff’s counsel that it had accessed the information until plaintiff’s counsel discovered the claims file included in materials produced by the defense in October 2016.  As a result of this discovery, the plaintiff moved to disqualify defense counsel; in response, they argued that that the motion should be denied because the plaintiff “waived any claim of privilege or confidentiality by placing the information on the Box, Inc., site where it could be accessed by anyone.”

Judge’s Ruling

In assessing the waiver of attorney-client privilege, Judge Sargent noted that “the court has no evidence before it that any precautions were taken to prevent this disclosure”, observing that the employee who uploaded the information to the site and plaintiff’s counsel both “knew – or should have known – that the information was accessible on the internet.”  As a result, Judge Sargent found that the plaintiff “has waived any claim of attorney-client privilege with regard to the information posted to the Box Site”, noting that the plaintiff “conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise.”

Based on the fact that the plaintiff did not claim that its agent’s posting of its claims file to the Box Site was not an intentional act and that she could not “find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation”, Judge Sargent determined that “Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine”.  As a result, she also concluded that the plaintiff waived any claim of privilege or work-product protection over its claims file.

As for the plaintiff’s motion for disqualification, Judge Sargent noted that “defense counsel have admitted that they accessed the Box Site by the hyperlink provided in the email” and indicated that “[t]his court should demand better” in terms of behavior of the defense counsel.  However, she stated: “Based on the decision that the posting of the Claims File to the internet waived any attorney-client privilege or any work-product protection over the information contained in the file, I find that the disqualification of defense counsel is not warranted in this situation”, calling that “an extreme sanction”.  Instead, she found that “the more reasonable sanction is that defense counsel should bear the cost of the parties in obtaining the court’s ruling on the matter”.

So, what do you think?  Should placing files on a file share site waive privilege?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

For the Fifth Year, Florida is the Place to Be for eDiscovery Education: eDiscovery Trends

The fifth annual University of Florida E-Discovery Conference is coming up one week from today, on March 30, and you can attend even if you don’t plan to be in the state of Florida on that day.

Not surprisingly, given the new technology CLE requirement in Florida, the focus of the conference this year is competence in 2017.  As the conference site notes, it’s “no longer your grandfather’s e-discovery (circa 2005). There are exciting new e-discovery tools, new offerings and huge new challenges against a backdrop of increasing demands for competence by judicial officials.”

Notable speakers include Craig Ball, George Socha of BDO Consulting, David Horrigan of kCura, Ralph Losey of Jackson Lewis, Mary Mack of ACEDS, Kenya Dixon of the FTC, Corey Lee of Hunton & Williams and Sonya Strnad from Holland & Knight.  Not to mention a number of federal and state judges, including U.S. Magistrates William Matthewman, Anthony Porcelli, and Gary Jones, Florida Circuit Court Judge Meenu Sasser, and retired Florida Circuit Court Judge Ralph Artigliere.

The conference includes topics ranging from cloud/social media/mobile devices preservation to collections on a budget to meet and confer to defending your keyword search.  The use of artificial intelligence for document review is explored, as well as efficient and reliable document review using contemporary tools.  The day ends with a judicial panel where federal and state judges discuss what they now expect from clients and attorneys.  A link to the Agenda is here.

For the first time, the University of Florida Levin College of Law is also sponsoring an E-Discovery CareerFest to respond to the growing interest of University of Florida law students in exploring career paths that involve electronic discovery and data analytic skills.  The CareerFest will be conducted the day before the main conference, Wednesday, March 29, from 3:00 to 5:30PM ET.

The 2017 UF Law E-Discovery Conference has been approved for 6 General, 6 Technology and 1 Ethics CLE credits by the Florida Bar.  If you plan to attend in person, the event will once again take place at the University of Florida Levin College of Law campus.  But, if you can’t attend in person, the event will also (once again) be streamed online.

The conference costs $199 to attend in person or $99 to attend via livestream.  Members of the 8th Judicial Circuit Bar Association, ACEDS and Friends of the conference are eligible to receive a discounted rate.  The conference is free to attend in person or via livestream to all employees of federal and state government agencies, judges and judicial staff, students, and academics.  To register for the conference, click on the “Register Now” link on the conference web site here.

So, what do you think?  Are you attending the conference?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

6,905 Billable Hours for Attorney Review May Not Be Billable if the Reviewer Isn’t Actually an Attorney: eDiscovery News

A contract lawyer for a Pennsylvania plaintiffs’ firm clocked 6,905 hours of work on a shareholder lawsuit against former executives and directors of Sprint Corp. related to its 2005 merger with Nextel.  One problem, however: that attorney had apparently been disbarred for years when he performed the work.

According to an article in the Wall Street Journal (One Lawyer, 6,905 Hours Leads to $1.5 Million Bill in Sprint Suit, written by Joe Palazzolo and Sara Randazzo, subscription required), “Alexander” Silow, a contract lawyer for the Weiser Law Firm PC, clocked 6,905 hours of work during the case. Averaging about 13 hours a day, Silow reviewed 48,443 documents and alone accounted for $1.5 million, more than a quarter of the requested legal fees, according to court documents.  Those awarded fees had already been cut from $4.2 million down to just $450,000 back in November of last year.

That initial fee reduction was awarded after Kansas District Judge James Vano called the requested amount “unbelievable.” “It seems that the vast amount of work performed on this case was illusory, perhaps done for the purpose of inflating billable hours,” Judge Vano, who sits in Olathe, Kan., wrote in a Nov. 22 opinion.

Silow had been working as a contract attorney for at least eight years when staffing agency Abelson Legal Search placed him at the Weiser firm in 2008, according to a Feb. 3 letter from the firm to Judge Vano. The law firm was notified by a third party it declined to name and learned that no one with Silow’s name was listed in a state database of licensed lawyers, Robert B. Weiser, co-founder of the firm, said in the letter.  Silow had presented himself to the firm as “Alexander J. Silow”, but “was in actuality named Jeffrey M. Silow” and confessed he had been disbarred when the firm confronted him, the letter said. The firm has since ended its relationship with Mr. Silow and alerted authorities, it said.  The Pennsylvania’s attorney discipline office confirmed Mr. Silow was disbarred in 1987 but could provide no additional information.

At least one Sprint Shareholder has requested that the case be reviewed again by Judge Vano in light of the new allegations.

According to Lester Brickman, an emeritus professor at Benjamin N. Cardozo School of Law in New York who has written about bill padding, plaintiffs’ firms bill for work done by contract attorneys like Mr. Silow at hourly rates of $300 or more when they submit their fee requests, but they typically pay the attorneys $20 to $40 per hour.  Brickman said it is common for firms to staff cases with contract attorneys and direct them to review thousands of documents to run up the fees.  In this case, bill padding and excessive markup appears to have been the least of the firm’s problems.

Thanks to ACEDS for the tip on the story!

Also, yesterday, I thanked our readers for 6 1/2 years of support and readership of the blog.  Today, I want to thank JD Supra and its readership for being named the Readers’ Choice Top Author in eDiscovery (and CloudNine being named the Top Firm) for 2017!  Distribution of our posts via JD Supra has grown our readership greatly over the past year and I really appreciate our partnership with JD Supra and thank all of you for reading our blog, whether it’s via JD Supra or the “old fashioned way” via our site!  Thank you so much!

So, what do you think?   Should firms do more to ensure that the attorneys they use for review are actually licensed attorneys?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

78 is Great! eDiscovery Daily Is Seventy Eight! (Months Old, That Is)

A new record!  (Get it?)  Seventy eight months ago today (a.k.a., 6 1/2 years), eDiscovery Daily was launched.  It’s hard to believe that it has been 6 1/2 years since our first three posts debuted on our first day, September 20, 2010.  Now, we’re up to 1,656 lifetime posts, and so much has happened in the industry that we’ve covered.

Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

Thanks, once again, for your support!  Our subscriber base and daily views continue to grow, and we owe it all to you!  Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Craig Ball of Craig D. Ball, P.C., Part 2: eDiscovery Trends

This is the sixth (and final) of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered almost 2,000 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media and he teaches E-Discovery and Digital Evidence at the University of Texas School of Law.  He currently blogs on eDiscovery topics at ballinyourcourt.com.

Craig provided so much good information that we decided to publish his interview in two parts.  The first half of his interview was published yesterday.

Speaking of the rise in discourse you mentioned, we’ve seen a recent trend with regard to an emphasis on technology competence for attorneys and we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  Do you think the increased emphasis on technology competence will (finally) change the general lack of understanding of technology within the legal profession?

I think those are significant developments. Still, as we take two steps forward, we take one step back. The best example: although we’ve moved forward with the institutionalization of and impetus for competence, the greatest “stick” that we have, sanctions, have become increasingly harder to obtain for eDiscovery malfeasance.  At this point, you must demonstrate an almost murderous intent to get significant sanctions. And, while I’m not troubled by the structure of 37(e) – serious sanctions have always come behind serious misconduct and not mere error – proportionality and the diminished ability to obtain sanctions have sapped the impetus to do more than the minimum.  Quality is still not part of the conversation.

Abuses are still rife.  Wasteful practices are everywhere.  And we still have a very long way to go before we get to genuine competency.  The question is, will three hours of CLE in Florida that you can satisfy in almost any way, without any testing or other check on competency, make a difference?  We could do much more if we decided that competency is something we really want and demand of lawyers.  We still make it optional and easy to avoid.  I admire what California did with their simplified idea of “Learn it, get someone who knows it, or get out”.  It’s one thing to establish that as a series of aspirations and goals – like the nine things you need to know in the California model – but it’s quite another thing to put “teeth” into those obligations.  When it comes to competency, we don’t demand enough of lawyers after the Bar exam.

Too, we close ranks when it comes to malpractice stemming from technical incompetency.  Judges are understandably loath to criticize their friends and colleagues.  Making a pronouncement against a lawyer’s competency or integrity from the bench carries a “long tail” in terms of its consequences.  So judges that otherwise might take lawyers to task feel constrained not to do so except in the most severe cases.  When you only punish the most severe cases of incompetence and malfeasance, you create a false impression that those are the only kinds of cases out there.

When you only punish the most severe cases, any lawyer who might otherwise think “I’d better learn this” will look at those horrific cases and say “I’m never going to do that”.  The problem is that they may do something that is just as bad – they may do it with less intent, less venal motivation – but the outcome will be the same.  If I shoot someone because I don’t know which way to point a gun or I shoot someone because I want to kill them, the law distinguishes between those two, but the mourning family may not – the result is tragedy.  We can forgive one instance of incompetence, but, after a while, if you’re just remaining incompetent and doing things the way you’ve always done them, that’s callous malfeasance.  Every dog gets one bite, but not two, three or four. At some point you must put the dog down and punish the owner.

One of the things that coming to this event makes me think about is what a shame it is that there’s only one of these a year that requires people to come to New York City in the winter.  I long for the days when Legaltech was all over the country and there were many flavors of legal technology conferences that you could attend. I think we are at an inflection point where people have come around to recognizing that they need to learn some of these things, but the resources to do so remain sparse.  There are too few significant events with strong, fresh, engaging components.

For example, the frustration we have in Texas is that if we build it, they don’t always come.  We need something in the marketplace and in the management of the Bars and in the educational process to train lawyers that makes this “keeping up” obligation something that we embrace with greater enthusiasm.  The camaraderie, community, sharing of ideas – a lot of that has turned into YouTube videos.  The “confabs” are almost all gone.  You’ve got these gigantic trade shows of constituencies, but at the local level, there’s very little.

How does a practitioner who can’t justify spending three or four days in New York during the winter have a chance to look at all the wares?  You can’t go to Amazon.com and search for law office management or eDiscovery software with the same ability that you can shop for a vacuum.  That’s a shame. We still communicate info about eDiscovery solutions by word-of-mouth, by hype and so forth.

Take your company, CloudNine.  I know your company to be very competent with a skilled group of people and competitive pricing.  But, how do you break out?  How do you get yourself heard in the marketplace?  There are a lot of great vendors out there perceived as regional or second-tier for no reason except that there is so much noise out there and there is so little ability to compare apples to apples in an objective way.  Options are drowned out by marketing budgets.  Is being good and efficient and cost-effective enough to make you the winner in the marketplace?  I think there is a sense among vendors that it’s not, it’s a gamed system that is all about the marketing money and not about the quality of the offering.

With that in mind and with consolidation within the eDiscovery provider community increasing, where do you see the market heading for eDiscovery providers?

As much as I want to share some optimistic observations (and I do see some things about which to be optimistic), I am deeply concerned about what the coming year is going to bring about for a number of vendors.  We’ve seen consolidation.  It may be bad for the consumers and it may be bad for trade shows as we have discussed.  But, I think it’s about to change and the loss of players that’s coming is going to be in many ways as severe as 2008.  We are seeing enormous pricing pressure and razor-thin margins.  I see efforts being made to generate the appearance of good business and good sales; but when the numbers are crunched and the sales persons take their commissions, a lot of these “good sales” will be unprofitable and unsustainable.

I think we’re going to see the collapse of several operations in 2017.  They can’t defy gravity much longer.  When the numbers start coming in and the flattening is obvious, the VC money gets spooked and people start scrambling to get their investments out, I think we’re going to have another significant shuttering reduction in the number of offerings out there. I’m hoping that will be ameliorated somewhat by startups and so forth, but I have to share with you my candid concern.  It may not all happen in 2017, it may wait until 2018 in the kind of uncertainty and optimism that comes in with regime change.  All of the stunning things that are happening right now may engender lots of litigation.  But, it’s hard to know whether this is good or bad for lawyers and whether it’s good or bad for litigation support.  Many providers may hang on for most of 2017, but it may be the “Wile E Coyote” approach – sooner or later, you look down and realize you’ve run off the cliff.  I’m sorry to be a Cassandra on that topic, but the numbers speak for themselves.  People are bidding on jobs at margins that are unsustainable without either massive cuts in personnel or shortcuts in quality that will entail massive headaches.

We’ve never fully adjusted to the commoditization of eDiscovery services. There are still too many people who remember the old pricing.  There are a lot of things – such as automation and the Cloud – which mean that the heyday of multi-thousand per gigabyte pricing is gone and never coming back.  We cannot build our market around those margins.   It’s like the oil industry – you can build for $100 a barrel oil, but you’d better realize you’re going to see $40 a barrel oil for a lot longer than you may expect.  I think the eDiscovery industry was built for $100 a barrel, but we are selling e-discovery at $25 a barrel.  At least that’s what the margins will look like when it  shakes out.

In addition to what we’ve already discussed, what are you working on that you’d like our readers to know about?

I’ve just relocated on a more permanent basis to New Orleans, Louisiana.  I will always be a Texan, but my body will be in New Orleans.  My goal for 2017 is a personal one: to cut back on the travel.  I’ve been doing 50 to 70 programs around the country and around the world now for many, many years.  I’m like George Clooney’s character in “Up in the Air” – when people ask me where I live, I want to say, “here, I live in an airplane.”  I’m tired of that.  It meant that I was disengaged from community, from friends and family, and I am tired of that. So, I’m going to be more selective in in what I do.  I’m saying “no” to engagements that may make me money, but not bring much joy.  I’m saying “no” to speaking engagements that, in ordinary circumstances, I would have routinely accepted.  Instead, I’m asking myself what I really like to do, where I really want to go, who I really want to speak with and where I really can make the most positive difference.  So, I’m hoping that this year instead of participating in 70 events, it will be more like 25.

But, I plan to use that disengagement to reengage in the areas where I think I can do some good.  Writing more. Celebrating more.  I’m one of those people you meet in life where you say “there’s a guy who needs to drink more”.  And, it’s not really about enjoying drinking, it’s that drinking is part of a social life that I have always made secondary to professional commitments.  I’m fortunate to now live in a city where I have great friends and there is always something enjoyable to do.  I don’t want to be the fool that says “I wish I could do that, but I have this thing to finish for work”.  Life is short and I feel the ticking clock that is held for me by my friends like Browning Marean and Bill Butterfield, who are saying “Craig , live a little”.  No one lays on their deathbed and says “Why didn’t I spend more time at the office?”  Our generation needs to mentor now.  We need to equip younger professionals with a sound moral and ethical compass and the skills with which to succeed within those moral and ethical boundaries.  That’s our true legacy – our children and others we can set on a path to make a positive difference.

Thanks, Craig, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.