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Electronic Discovery

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Four

This overview is the final of a four-part series, presented separately.   For your reference, the previous articles can be accessed through these individual links:  Part One;  Part Two;  Part Three.

Series Conclusion

The litigation world has changed dramatically in the past fifty years.  In 1962, 11.5% of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8% despite a five-fold increase in the number of civil filings. Those figures aren’t a result of increased eDiscovery activity (ABA Journal of Litigation 2004).

In state courts, a U.S. Justice Department study of the nation’s 75 largest counties found that nearly 97% of civil cases are settled or dismissed without a trial. The number of cases going to trial fell from 22,451 in 1992 to 11,908 in 2001, according to the same study. (source: Bureau of Justice Statistics)

But is eDiscovery the culprit? Yes, eDiscovery is expensive but numerous other factors, especially ADR and extended motion practice, have been much greater contributors to the reduction in cases going to trial.  And current trends in early case assessment and early data assessment, much more than the overall costs of eDiscovery, may be playing a higher part in ongoing reduction of trials than previously understood.

The decline in the number of trials does not necessarily imply a reduction in access to justice.   eDiscovery is still an effective tool in ADR and class actions and MDL practice, which has replaced much of standard litigation, a factor which does not appear in traditional trial statistics.

Litigation as a process to preserve legal remedies appears to be as robust as ever.  The modern difference is the traditional jury trial is no longer the final resolution of the process.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with us on several recent webinars.  Tom has also written several informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions we’re happy to share on the eDiscovery Daily blog.  Enjoy!

 

 

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published on Monday and part two was published on Tuesday.  Here’s the third part.

eDiscovery Considerations

So where does eDiscovery fall in this discussion? Where does it fall in the list of factors noted above which influence the decline of trials? How do we use eDiscovery to decide if a case should be settled?

First of course is the proportionality analysis that is so much a part of the current rules. Simply put, is a settlement offer reasonable within the scope of the monetary value of the litigation? If it is wildly disproportionate to the amounts in controversy, then you will need to decline the settlement offer. If it is reasonable, but not quite acceptable, then it is appropriate to make a counter-proposal.

Current eDiscovery tools for ECA and EDA can help make this determination as you are able to quickly and accurately review documents to assess damage claims and potential liability issues. Accurately identifying the documents to be handled should be a routine part of the Rule 26(f) conference and subsequent discovery plan and thus give you a confident assessment of the economic value of the case very early on.

Second is the timing of any proposed settlement. After the 26(f) conference and attendant issues have been resolved, have you received enough information to evaluate any offer or make a proposal? Or do you need more time to continue discovery and make such an assessment? This is where eDiscovery and ECA can be especially helpful since the FRCP encourage discovery and assessment of ESI at an early stage which can help in this decision.

Third, you must ask whether negotiations will be fruitful. All negotiations and any ultimate settlement require some degree of compromise by both parties and a critical factor in that process may be knowing when is the right time to negotiate.

If you have a sense in your case that emotions are running high and no negotiations are possible it may better to proceed with your ECA and simply wait until the case evolves more before attempting a settlement.

Fourth is the cost of eDiscovery which is the classic proportionality analysis. The  process of eDiscovery, and thus eventually trial, will be expensive and if that expense is more than the value of the case, settlement to avoid the ultimate costs of litigation is likely a better choice.

Remember that the review portion of the eDiscovery process is typically 2/3 of the eventual total cost so your initial costs of preservation, collection, processing and ECA can give you a good ballpark figure for your total eDiscovery costs. That figure, in turn, can drive an assessment of whether settlement negotiations are in order.

Fifth if the outcome of the case is unpredictable, that is if your case appears to be a toss-up, you may be better off with a settlement. Essentially this is a risk assessment of the ultimate cost of expenses, court fees and attorney fees if you don’t win.

Finally, consider the hard to define value of business goodwill. Sometimes a reputation in the business community as being a reasonable person has a value that can’t be quantified. Your legal action may be justified, even necessary, but extensive publicity about ongoing litigation may outweigh those factors.  When parties understand that a reputation in the business community has an inherent value, settlement may be a good choice.

We’ll publish Part 4 – Conclusions – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Facial Recognition Software Coming to an Airport Near You: eDiscovery Trends

Air travelers have already become accustomed to standing in the brightly painted footprints at security checkpoints and raising their arms in order to be scanned, but this month in Orlando, a new type of scan is taking place. Last month, Geneva-based tech company SITA installed cameras with facial recognition software at the Orlando International Airport in conjunction with British Airways and U.S. Customs and Border Protection (CBP).

When people step up to be scanned, a photo is taken of their face, it’s sent to CBP, who then matches the photo to the person booked on the manifest, and if it matches, the gates open and the passenger can board, all in a matter of seconds. If there isn’t a match, the passport is scanned manually by the gate agent.

The hope is to bring efficiency to the process of making sure people are who they say they are. The TSA is also testing similar technology for security check-ins, with Steve Karoly, acting assistant administrator at TSA, says it’s a “game changer.”

But according to a report released by the Center on Privacy and Technology at Georgetown Law School, the system is full of technical and legal issues, with a rejection rate of 4 percent. One issue the report cites is bias, with higher rates of false rejections occurring because of race and gender. Another report, conducted by the CAPA-Centre for Aviation, said the face-recognition software isn’t good at “identifying ethnic minorities when most of the subjects used in training the technology are from the majority group.”

Privacy is another concern as the Department of Homeland Security doesn’t have any rules for protecting Americans’ privacy and use of this data, but CBP says it deletes the photos within 14 days. It’s still unclear how GDPR compliance comes into play, especially with travelers who are EU citizens. But so far, most people who have used the technology aren’t concerned with privacy as long as it speeds up the boarding process.

This is still very much in the testing phase, although President Trump signed an executive order last year to increase the use of biometric tracking for airport security. As this type of technology becomes more and more widespread with uses outside of airport security, it’s also inevitable that litigation surrounding this technology with also rise.

In China, police are using AI-powered CCTV cameras to enforce jaywalking laws. If the cameras catch you outside of the crosswalk, the facial recognition software links with cellphone systems, and a text message is sent to your phone letting you know you’ve been fined.

But even if the technology isn’t the primary reason for the lawsuit, the electronically stored information created by scanners could potentially become relevant to discovery. This has certainly happened with other relatively new data sources with a rise of text messages, social media, and data from the Internet of Things being preserved as evidence more and more in both the civil and criminal courts.

It will be interesting to see how the use of this technology grows, but it’s also a reminder to organizations, who may be contemplating facial recognition software for various applications, of the need to consider the potential implications of how biometric data could be preserved and collected should litigation arise.

So, what do you think?  How do you see the rise of facial recognition technology affecting your eDiscovery practices and policies in the future?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Modern Litigation History

First, let’s consider the rise in class action and MDL litigation.  In 1962, U.S. Supreme Court Chief Justice Earl Warren appointed a special committee to improve the efficiency of the legal system. Alfred P. Murrah, CJ of the 10th Circuit, was named chairman and his committee members came up with then revolutionary solutions that are still used today, ideas such as combining depositions and discovery and combining lawsuits involving similar complicated claims into a single case.

By 1967, backlogs in the Federal court system had been cleared and the committee discovered large numbers of similar, complex cases were common across the U.S. court system. They recommended that a permanent panel be set up to handle these types of matters and Congress created the JPML in 1968.

Now, by some estimates, as many as one in every seven civil lawsuits filed in federal court are or will become part of a multi district litigation and these cases involve as many as 60% of all plaintiffs in Federal civil suits.  Since a high number of these cases settle, the number of trial associated with these litigants is also dramatically lessened.

Second, since the 1986 U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment, the increase in summary judgement motions has increased and seems clearly linked to the decrease in the number of trials.

Third, let’s consider that a high number of cases are now resolved by nonjudicial means, through alternative dispute resolution (ADR) methods such as compulsory mediation or arbitration clauses in contracts.

Fourth, changes in the FRCP which emphasize docket management have led many judges to become more active in management of the case before them.  FRCP 16 in particular was amended to require judges to monitor closely the management of cases (The Proposed FRCP Amendments Intended to Foster “Judicial Management”) and these changes have helped push early case resolution.

Finally, of course, the overall cost of litigation has risen dramatically. Bluntly put, the cost of making a wrong decision on whether to litigate wrong is getting more expensive. A seminal study of both federal and state court data in 2004 by DecisionSet found that making a wrong decision on litigating can cost a plaintiff about $43,000 and for defendants, who were less often wrong about going to trial, the cost could easily exceed $1 million.

We’ll publish Part 3 – eDiscovery Considerations – on Thursday.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I have heard a great deal of anecdotal discussion lately about fewer and fewer cases going to trial, with an implied criticism that the cost of eDiscovery is somehow at the root of this phenomenon.  Indeed, the national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.

I decided to investigate both of these statements and was surprised by what I found. First, the decrease in cases going to trial is nothing new and in fact far pre-dates the eDiscovery changes to the FRCP.  Second, there are several clear reasons for this decline, all unrelated to any eDiscovery issues.

We’ll explore these reasons and other issues in this paper, as follows:

  1. Background
  2. Modern Litigation History
  3. eDiscovery Considerations
  4. Conclusions

Background

Each year the Administrative Office of the United States Courts (AOC) is required to provide a report of statistical information on the caseload of the federal courts for the 12-month period ending March 31.  According to AOC statistics, from 1962 through 1985, federal civil trials doubled, increasing every year. Trials then began declining in 1986 with a dramatic decline commencing in 1990. By 2006 there were only half the number of federal civil trials that there were in 1962 and since 2006, civil trials have continued to decline although at a much slower pace.

This phenomenon was so well known by the late 90’s that it was actually termed the “vanishing trial” by numerous commentators and led to many dire pronouncements about the future of the US legal system. Typical was a 2005 pronouncement by Chief Judge William G. Young of the U.S. District Court for the District of Massachusetts that “[t]he American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal, but it is dying nonetheless.”  (What the Vanishing Trial Lawyer Means for In-House Counsel, and 5 Things They Can Do, Corporate Counsel, Oct. 14, 2016)

But the AOC report for 2017 also showed that the number of civil case filings was actually up 6%, a trend that has been present during the same period that the number of trials declined. Which clearly begs the question, if case filings continue to rise but trials continue to decline, what is going on in between those two events to cause the decline?

We’ll publish Part 2 – Modern Litigation History – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Attention Houstonians! Come “Wine” about eDiscovery with ACEDS: eDiscovery Socialization

I’ve told several people that some of my best posts come after a couple of glasses of wine (at least they look great to me!), but I don’t usually get to write about wine in the actual blog.  This is one of those rare times.

On Thursday, July 12, the Houston Chapter of the Association of Certified E-Discovery Specialists (ACEDS) is hosting a happy hour and social in Houston (of course, duh!).  It will be at the Sonoma Wine Bar (upper Kirby location, you have to specify because there are two locations) at 2720 Richmond Avenue, Houston, Texas 77098.  The event will be from 5:30pm to 7:30pm.  Join the ACEDS Houston Chapter along with the generous sponsor of the event, Ernst & Young, for an evening of networking and fun (inside info, I’m told both Ernst & Young will be there, so you don’t want to miss it). :o)

You can click here to RSVP for the event.  Or contact Jean Rivers at jrivers@bafirm.com for more information.  If you’re in Houston (or going to be here on that date), come join us at the wine bar voted “best wine bar ambience in Houston by customers”.

Here’s the graphic to show you the wine bar and to reiterate what I just said (from the department of redundancy department):

So, what do you think?  Do you ever get a chance to network with eDiscovery colleagues?  Well, now’s your chance!  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Need an eDiscovery Project Manager? Here’s the Guy Who Literally Wrote the Book: eDiscovery Best Practices

There’s a new consulting business aimed at helping organizations better leverage project management in eDiscovery, litigation support and legal technology and it’s founded by the guy who literally wrote the book on project management in eDiscovery.

As covered in LegalTech® News (eDPM Advisory Wants to Help You Get Serious About Project Management, written by Gabrielle Orum Hernández), litigation e-discovery veteran Michael Quartararo, formerly the director of litigation services at Stroock & Stroock & Lavan, recently struck out on his own to form eDPM Advisory Services, a consulting business aimed at helping organizations better leverage project management for specific projects or broader workflow.

“I think there’s a lot of talk about project management in the space, in law firms and corporate legal operations, even on the service provider side. But my experience and exposure throughout the industry shows me that a lot of folks talk about it, but do they really understand it? Do they have the knowledge and expertise to really implement it at their firm at their corporate legal department or service provider organization?” Quartararo said.

eDPM Advisory plans to operate in a few different ways. The company can assist when organizations are looking for guidance on one particular matter or case. “Maybe things are off the rails a little, maybe they’re just starting, maybe they’re knee deep in the project on a case,” Quartararo noted, saying that eDPM can then “just parachute in and help get some clarity on that matter.”

The new company is also available to help organizations design or re-tune long-term project management strategies, and provide training for organizations about how to best leverage project management in their work.

As noted in the article, opening a business has been a long-held dream of Quartararo’s, along with writing a book – which he already did and self-published in 2016: Project Management in Electronic Discovery (available on Amazon here).  See, I told you he literally wrote the book!  :o)  Speaking personally, Mike is one of the sharpest guys I know in the industry – I’ve attended several presentations of his at various conferences and they’re always very informative – and a good guy as well, so I expect he will do great in his new venture.

So, what do you think?  How do you handle project management in your eDiscovery projects?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Law Firm Partner Says Hourly Billing Model “Makes No Sense” with AI: eDiscovery Trends

Artificial intelligence (AI) is transforming the practice of law and we’ve covered the topic numerous times (with posts here, here and here, among others).  And, I’m not even including all of the posts about technology assisted review (TAR).  According to one law firm partner at a recent panel discussion, it could even (finally) spell the end of the billable hour.

In Bloomberg Law’s Big Law Business blog (Billable Hour ‘Makes No Sense’ in an AI World, written by Helen Gunnarsson), the author covered a panel discussion at a recent American Bar Association conference, which included Dennis Garcia, an assistant general counsel for Microsoft in Chicago, Kyle Doviken, a lawyer who works for Lex Machina in Austin and Anthony E. Davis, a partner with Hinshaw & Culbertson LLP in New York.  The panel was moderated by Bob Ambrogi, a Massachusetts lawyer and blogger (including the LawSites blog, which we’ve frequently referenced on this blog).

Davis showed the audience a slide quoting Andrew Ng, a computer scientist and professor at Stanford University: “If a typical person can do a mental task with less than one second of thought, we can probably automate it using AI either now or in the near future.” AI can “automate expertise,” Davis said. Because software marketed by information and technology companies is increasingly making it unnecessary to ask a lawyer for information regarding statutes, regulations, and requirements, “clients are not going to pay for time,” he said. Instead, he predicted, they will pay for a lawyer’s “judgment, empathy, creativity, adaptability, and emotional intelligence.”

Davis said AI will result in dramatic changes in law firms’ hiring and billing, among other things. The hourly billing model, he said, “makes no sense in a universe where what clients want is judgment.” Law firms should begin to concern themselves not with the degrees or law schools attended by candidates for employment but with whether they are “capable of developing judgment, have good emotional intelligence, and have a technology background so they can be useful” for long enough to make hiring them worthwhile, he said.

The panelists provided examples of how the use of artificial intelligence can enhance lawyers’ efficiency in areas such as legal research, document review in eDiscovery, drafting and evaluating contracts, evaluating lateral hires and even assessing propensities of federal judges.  Doviken indicated that a partner at a large firm had a “hunch” that a certain judge’s rulings favored alumni of the judge’s law school. After reviewing three years’ worth of data, the firm concluded the hunch was valid, assigned a graduate of that law school to a matter pending before that judge, and started winning its motions.

“The next generation of lawyers is going to have to understand how AI works” as part of the duty of competence, said Davis.  Want one example of how AI works that you are probably already using?  Click here.

So, what do you think?  Do you think that AI could spell the end of the billable hour?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Sanctions Plaintiff After Jury Verdict for Failing to Disclose Third Party Communications: eDiscovery Case Law

In Singer Oil Co., LLC v. Newfield Exploration Mid-Continent, Inc., No. CIV-16-768-M (W.D. Okla. June 5, 2018), Oklahoma District Judge Vicki Miles-LaGrange ruled that the plaintiff did violate Federal rules by not disclosing the communications its counsel had with the third parties referenced in plaintiff’s counsel’s time records, but found that the defendant’s proposed sanction was an “extremely harsh sanction not warranted by the circumstances involved” and limited the plaintiff sanction to require the plaintiff to pay the attorneys’ fees the defendant incurred in filing its motion for sanctions and its reply.

Case Background

In November 2016, the plaintiff served its responses to the defendant’s discovery requests, representin that it had fully and truthfully answered the interrogatories and had produced or would produce all responsive documents to the requests for production.  The plaintiff subsequently confirmed that all responsive documents had been produced, did not claim privileged status for any unproduced documents and did not supplement its response to interrogatories or requests for production in the case.

After this case was tried to a jury in November 2017, the plaintiff filed its Amended Motion to Recover Attorney’s Fees. During review of the time records associated with that motion, the defendant became aware for the first time that throughout the course of this litigation, the plaintiff’s attorney frequently corresponded by e-mail with numerous third parties regarding several of the issues that were disputed in this litigation and the two wells at issue in the case, with the defendant asserting that at least two of the communications took place before plaintiff served its discovery responses.  In its response, plaintiff asserted that it did not violate the Court’s orders, did not violate the spirit of the Court’s orders, did not violate the letter or spirit of the discovery code and contended that the majority of the communications would fall under the work product doctrine.

Judge’s Ruling

After considering Federal Rules 26(g)(1),(3), 26(e)(1)(A) and 37(c)(1), Judge Miles-LaGrange found that “while plaintiff may not have intentionally violated the above-referenced discovery rules, plaintiff did violate those rules by not disclosing the communications its counsel had with the third parties referenced in plaintiff’s counsel’s time records. Request for Production No. 5 specifically requests any and all correspondence between plaintiff (including plaintiff’s counsel) and any other person or entity with respect to Newfield, the Smith Well, the Edgar Well, or the subject of this lawsuit; the Court finds the communications at issue would fall within this request for production. Additionally, while these communications likely would be protected by the work product doctrine, plaintiff did not assert such and did not provide Newfield with a privilege log such that Newfield could contest any claim of privilege. However, the Court finds that based upon plaintiff’s description of the communications at issue, any lack of production only had a very minimal, if any, impact on this case.”

As for an appropriate sanction against the plaintiff, Judge Miles-LaGrange stated: “In light of the amount of attorneys’ fees requested by plaintiff and the amount of costs taxed, the Court finds Newfield’s proposed sanction is an extremely harsh sanction not warranted by the circumstances involved. Having reviewed the parties’ submissions, the Court finds an appropriate sanction would be to require plaintiff to pay the attorneys’ fees Newfield incurred in filing its motion for sanctions and its reply.”

So, what do you think?  Do you think that was a sufficient sanction for failing to produce relevant ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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