Relativity Fest, kCura Corp.’s annual user conference, kicked off Oct. 13 with the release of Relativity 9, the latest version of the company’s e-discovery platform. In addition to educational sessions on legal and technical topics, the conference included a panel of federal judges telling the crowd of about 1,000 “What Judges Need from Lawyers, Paralegals, and Technologists.”
The panel, held at at Chicago’s Palmer House, featured judicial experts on electronic data discovery law, including U.S. District Court judges Nora Barry Fischer (W.D. Pa.) and Xavier Rodriguez (W.D. Tex.), Magistrate Judge Andrew Peck (S.D.N.Y.) and recalled U.S. Magistrate Judge David Waxse (D. Kans.). I was the moderator of the panel; we covered EDD topics ranging from competence, cooperation, and computer-assisted review. The discussion included spirited—but good natured and often humorous—debates among the judges on the vital EDD issues of the day.
Competent Counsel
Noting the 2012 technical competency provisions in comments to the American Bar Association’s Model Rules of Professional Conduct—and a more recent interim opinion by the State Bar of California, the panelists discussed how much technical competence they really needed from lawyers in their courts.
“The first thing lawyers need to do is recognize when they don’t know something,” said Waxse. “If they’re in litigation, lawyers often have big egos, they know they’re right, they know what they’re talking about—but sometimes, they don’t.”
Both Rodriguez and Peck noted that lawyers need not be technical wizards to provide competent counsel during discovery. “In medical malpractices cases, lawyers are supposed to be able to ask intelligent questions in the cross-examination of doctors, but we don’t expect lawyers to do the surgery,” Rodriguez said, adding that very few judges would expect lawyers to yank out hard drives and explain everything about how they work. Lawyers should rely on technical experts, Peck reminded the crowd, urging them to “bring your geek to court.”
“With even the most experienced e-discovery lawyers, there’s a limit to what lawyers can actually know about technology,” Peck said, telling the lawyers in the audience, “Don’t be shy about bringing the client’s IT person, the lit support person, or the vendor. If you’re not knowledgeable, bring somebody with you who knows what they’re talking about.”
Fisher discussed the challenges judges face due to the disparities in the level of technical competence among lawyers. “It puts us in an awkward position because we as judges can’t practice law,” she said. “We can’t steer you one way or another.”
Rodriguez stressed the importance of being able to explain technical issues to judges. Rodriguez has worked extensively on technical issues and now teaches EDD law at St. Mary’s University School of Law, but noted that many judges lack technical training. “I studied medieval history with a minor in classics.”
Although the judges agreed that attorneys need not rush out to obtain a Ph.D in computer science to meet the judges’ need for technical competence, Waxse triggered a roar of laughter from the technologists in the crowd with his story of lawyers in his court who didn’t meet a minimal standard. The lawyers said they had agreed to print the electronically stored information in the case. When Waxse reminded the lawyers tthat by doing so, they would lose the ability to perform electronic searches of the data, counsel replied, “Oh no, Judge, we’ve thought about that. When we get their paper, we’re going to scan it so we can search it.”
Cooperation Kumbaya?
An alleged ethical duty of zealous advocacy is no excuse for a failure to cooperate in e-discovery, said Waxse, noting the ethical requirement for zealous advocacy has been gone in federal practice since 1983. To encourage cooperation, Waxse instructs lawyers to videotape their discovery negotiations. When Waxse pondered why videotaping worked, an attorney with an undergraduate degree in physics told him, “Judge, it’s simple. Lawyers are like particles in physics—they change when observed.”
Rodriguez said he wasn’t sure the push for cooperation in EDD is realistic in every case. “I’m not against cooperation, of course, but I’m appreciative of the fact that it’s hard to be a lawyer right now, and it’s hard to keep your clients happy. There are a lot of financial pressures on lawyers, and some clients are going to make it difficult to cooperate,” he said.”
Peck observed that there are ways to deal with clients who don’t want to cooperate in EDD. “If your client is giving you trouble about cooperation, give them a budget with cooperation, and then the budget without cooperation that is at least twice as much,” said Peck. “Cooperation may be too Kumbaya for some clients. Instead, tell them you are going to strategically, proactively release information.”
Refusing discovery requests because they are overly burdensome is probably a bad strategy, he cautioned. “‘Just Say No’ never worked in the drug war, it never worked in the other Reagan uses of ‘Just Say No,’ and it really doesn’t work in court,” Peck said, instructing the audience to come to court with proposed solutions to discovery problems.
The use of special masters was good way to promote cooperation in EDD because it gives litigants another opportunity to air their grievances to a neutral, Fischer said. Refuting the notion that the use of special masters adds a costly layer to the litigation process, she noted that studies have shown that it actually saves money.
Discovery Debates
Some of the judges on the panel have a history of disagreeing on the topic of computer-assisted review, and this event was no exception. Rodriguez disagreed with Peck’s position that we may be nearing a time—perhaps in five years or so—when judges will mandate the use of predictive coding—or at least make an award of costs extremely unlikely unless a party agrees to cut costs by using predictive coding.
“The judiciary moves at such a glacial pace, the idea that we’re going to predictive coding mandates in five years is very wishful thinking,” Rodriguez said. “With so many lawyers with their heads in the sand, predictive coding is too scary for them, frankly. I think keyword searches are what we’re going to see for the foreseeable future.”
Peck shot back by noting that in litigation over the Hooters restaurant chain in EORHB, Inc., et al v. HOA Holdings, LLC., the court on its own accord suggested the parties use predictive coding. Fischer said predictive coding was being used in cases where judges didn’t know about it. Waxse said his takeaway from Hooters was the court’s suggestion that both sides use the same vendor.
Peck and Rodriguez addressed a question on whether litigants have an obligation to disclose the use of predictive coding. Peck said he didn’t see how disclosure of predictive coding use wouldn’t come up if one is doing a proper meet and confer under Rule 26(f). Rodriguez disagreed, noting that Peck’s position assumed the parties knew what they were talking about at meet and confer, but that in nine out of 10 cases, they don’t. “I hate to say it, but I agree with you,” Peck said to a room full of laughter.
David Horrigan is an analyst and counsel at 451 Research and a former reporter for Law Technology News and The National Law Journal. His related research can be found here.
