Discussion 5 Log

<TFJoshuaS> Are all of you seeing video and hearing audio of Professor Nesson right now?

<MarkH> AOK here

<TFJoshuaS> Good afternoon and welcome to the discussion space for the Digital Discovery CLE course.  Thank you all for participating in what I’m sure will prove to be an interesting and fun exchange of ideas on digital discovery—and one which will hopefully be free of technical glitches.  My name is Joshua Solomon, and I will be the moderator for this discussion group.  I am a teaching assistant for this course and a student at Harvard Law School.  I

<MarkH> Joshua, you've overflowed the buffer

<TFJoshuaS> Sorry about that.  It seems to be working on my screen

<TFJoshuaS> The end basically just asked Mar to introduce himself

<MarkH> LAst complete sentence ended " a student at HArvard Law School."

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<MarkH> Oh, Ok...

<TFJoshuaS> If you all wouldn't mind sending brief introductions while Professor Nesson is speaking, that would be great.  Thanks.

<MarkH> I'm an attorney in practice since 1977. Graduated from U Chicago, and practivced first at Skadden Arps. I'm now a free-lance legal consultant, and maintain a small solo practice.

<TFJoshuaS> Wonderful.  Thank  you and nice to "meet" you.

<JeffL> I'm in-house counsel to Ontrack Data Int'l in Mpls.  I also get involved prepping our engineers to testify in electronic discoveyr matters and working with the law firms that retain us

<TFJoshuaS> Great.  Thank you.  Nice to meet you as well.

<MarkH> hmmmm. I should add, my practice has primarily been in complex litigation, particularly contested M&A and corp. control matters. I also practice in the intell. prop. area.

<TFJoshuaS> Assuming you both are getting video and audio feed now, why don't we listen to Professor Nesson for a bit, and then return here when he finishes.

<TFJoshuaS> Thanks Mark.  The more information the better.

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<TFJoshuaS> Why don't we start with Professor Nesson's last question:  is this an area plagued by bad faith, or is it just a learning curve.  What do you think Mar?

<MarkH> I think both...

<TFJoshuaS> How do you mean and how should judges deal with it in light of that?

<JeffL> I think that this issue underscores the need for education (for all of us).  If Plaintiffs lead with evidence from their consultants as to the reasonableness/feasibility of request judge will be in beter position to evaluate claim of bad-faith

<MarkH> In my experience, discovery is an area of practice rife with some degree of bad faith, and  digital discovery is unlikely to be an exception.

<TFJoshuaS> Both good points. . .

<MarkH> I agree re education. But I also think we need much of the education at the magistrate/judge level...

<JeffL> In-house counsel and their outside counsel need to get up to speed as it is their duty to preserve evidence (in whatever form)that pertains to the lawsuit.

<MarkH> Too much of discovery is done with a hands-off attitude by the court

<TFJoshuaS> Jeff, what about judges?  Do they need education as well?

<MarkH> !?

<JeffL> Absolutely.  Simply educating them as to the reality of digital discovery is important.  Whether it is via affidavits or live testimony it will asssit them in rulling sensibly on these matters.  It is especially important as the case law typically does NOT discuss the technology but merely the reasonableness of the orders in light of discovery rulings

<TFJoshuaS> Great.  Let me switch to another question.  I'm wondering whether an order such as the one we looked at does anything.  Does it accomplish anything that the common-law rules of preservation don't?  Mark?

<MarkH> I think we have the tools in Rule 16 to manage the process effectively. THe only value of a quick-draw motion is to hald document "retention" programs that could destroy valuable material before the discovery process gets off the ground.

<TFJoshuaS> So you think there is in fact a distinction?  REtention programs would be allowed to go forward w/o such an order?

<JeffL> This goes back to the original point of specificity of the original preservation demand and that can assist in managing the process

<MarkH> I think common-law preservationn rules are potentially inadequate onlyl in the face of automated, or third party vendor destruction programs.

<TFJoshuaS> I agree Jeff.  My view is that at the very least, it makes things clear in an otherwise unclear environment.

<MarkH> WHen I was doing large scale high-stakes discovery in the mostly paper era, we generally advised clients that standard "retention" policies, mandating destruction of aged material, etc. should continue unless the company was aware of relevant material that would be afffected.

<TFJoshuaS> That's good to know.  I guess it helps confirm that the order may serve some purpose.  Ok, Professor Nesson is about to begin again.

<MarkH> I'm afraid in these days that the time horizons are much shorter than in the past.

<TFJoshuaS> Michaela, I've been unable to reach you in a private chat.  Are you getting this message?

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<MichaelaO> Joshua, Sorry, I was taking a call. I will try and pay attention.

<TFJoshuaS> Great.  We'll be returning to chat in just a minute

<TFJoshuaS> Michael, welcome.  As soon as Professor Nesson stops speaking, perhaps you could introduce yourself.  You could even write it now if you'd like.

<TFJoshuaS> Michaela, perhaps you could do the same.

<MichaelR> I don't think I'll be able to tell when Professor Nesson stops speaking, I'm getting an error with RealPlayer--unable to connect to server

<JeffL> Do we have a cite for the Tex rule the professor is referring to?

<TFJoshuaS> Oh.  HAve you tried calling the help number that is on the nav bar to the left?

<TFJoshuaS> We do have one Jeff.  I'll get it for you.

<JeffL> thanks

<TFJoshuaS> That's you Jeff.

<MichaelaO> I am an in-house litigation attorney.

<TFJoshuaS> Welcome back.  I hope to get intros from Michaela and Michael.  In the meantime, a question. . .

<TFJoshuaS> Professor Nesson pointed out that during the course of the week, many expressed a view that there should be sharing of costs, perhaps more than in a non-digital context.  Jeff, you pointed out in what you wrote last week that plaintiffs are put in a better position by the move to digitization of data.  In light of that, do you think they should be made to take on more of the cost of discovery.

<MarkH> I don't think so.... THe process of discovery has always involvd plaintiffs who piggy-backed on the conporatee information organization structure.

<JeffL> As to the cost issue, with technology becoming more robust in developing solutions for electronic discovery (key-word searching, elimination of redundnat docs, etc) the costs actually are going down if you have a well-tailored request so I don't think they should be required to share the cost in light of the enhancements to the process

<TFJoshuaS> Great.  Thanks to both of you for that.  I want to pick up  on Jeff's point, as also mentioned by Professor Nesson

<TFJoshuaS> Michaela, do you agree with Jeff’s claim, as mentioned by Prof. Nesson, that the technology is changing the cost structure, so that the added cost of searching archived data is not really an issue.

<TFJoshuaS> Michael, perhaps we could get your view on this as well.

<MichaelaO> Perhaps searching and retrieving archived data may cost less, but attorney review still increases witht he amount of data retrieved.

<TFJoshuaS> Jeff, how do you respond to Michaela's point?

<JeffL> Attorney review time may actually decrease due to the follwing factors:  Key-word searching eliminates a bulk of docs, getting rid of redundant docs as well.  IN addition you can limit searches by author,m date, time subject, etc so that, in the end its been our expereince that the actual production is less

<MarkH> I have a question, possibly for JeffL: The process of reviewing archival material must be coomplicated by the "legacy" factor, both hardware and software. If I'm a plaintiff, I don't want to be obliged to engage an expert equipped to take raw data in many forms and solve that problem.Is my concern real? If so, how can I address it?

<JeffL> Moreover, we have found that, statistically, that 30-40% of emails contained on corporate back-up are redundant (i.e. the same email sent to 8-9 people)

<MichaelaO> I'm talking about more than just legacy materials for e-mail. As Mark points out there are legacy systems (hardware and software) for other archived materials.

<JeffL> The "legacy" issue, while often argued, is more often than not, not an insurmountable issue.  It is not unusual, for example for a corporation to have gone through 3-4 email packages during the scope of the discovery order.  Most experts should be able to deal with legacy systems, if not I'd question their expertise

<TFJoshuaS> Michaela, do you agree that the automation of searching and indexing reduces attorney costs?  To what extent would you be comfortable allowing automated searches, eliminating much of teh "by-hand" review.

<JeffL> The software employed by companies like Ontrack, generally is custom-developed to overcome the searchin issues associated with legacy data/systems.  In fact the software searches "data" (all info as written in binary form) so the original software or hardware created on should not be an issue

<MarkH> YEah, but should plaintiffs have to pay for that expert up  front? doesn't the producing company have an obligation to produce material in a usable form ("useable" meaning here "without resort to an expert')

<TFJoshuaS> Good point Mark.  Converting to usable format, I would think, is a cost in and of itself.  Who should bear it?

<JeffL> I'd be interested in Mark's definition of "useable" - Do you mean paper, native format, etc?

<MarkH> Following up re your question to Michaela, can't I expect that defendants have converted the material produced for review by their own counsel?

<MarkH> JEff, I think I woulkd accept whatever form the opposing counsel had available for pre-production review.

<TFJoshuaS> Great discussion.  We're being drawn away by Professor Nesson.  Back to him.

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<MarkH> I must say, it would never have occurred to me that materials would be produced without a pre-production review by counsel.

<TFJoshuaS> Starting with search terms, Mark, what is your view on exchanging search terms?

<MarkH> I  think that's a morass for both sides. I don't want to get into a "my search terms are better than your search ters" debate, and I don't want tto give any party a premature insulation form having to make full and fair disclosure.

<TFJoshuaS> So no exchange?

<MarkH> ...bad spelling, but maybe the point gets across <g>

<TFJoshuaS> Michaela and Jeff, do you agree?

<MarkH> I would say no,, unless there iss a pree-established protocol for what the exchange means, and how it is used. Again, I think the proper tool here is a meaningful Rule 16 conference, with a magistrate who knows what's what.

<MichaelaO> I agree that search terms are, and should be classified, as attorney work product. In addition, once you produce disclose serach terms, you'll reeceive a supplementalk request to go back and search for additional terms and it wil go on and on!

<JeffL> You could argue as well that any search terms used by producing party could be, arguably, work product in the absence of a specific request for docs

<TFJoshuaS> Great.  Now as for the search mechanism.  Michaela, to what extent would you rely on digital searches?  For relevance?  Privilege?  Proprietary information?

<JeffL> This is an opportunity for counsel to work in concert with the court and the expert to both protect the party against inadvertent disclosure of privileged/proprietary docs as well as produce responsive docs

<MichaelaO> I agree that it provides teh opportunity, but the Court doesn't always have the time or inclination to oversee discovery and tells the parties to "work it out."

<MarkH> Ambiguity abounds. Rely to meet your own production obligation? Rely to let the producer off the hook of a potentially much more expensive search?

<JeffL> Having appropriate protective orders in place (covering the experts as well) has helped alleviate some of the hesitancy to utilize digital searching.  Once the expert has been proprely qualified and given an explanation as to the reliability of the searching method to be employed

<TFJoshuaS> Jeff's comments raise an interesting issue.  Will courts be willing to rely on experts more in this area.  Traditionally, courts have not used experts as much as some would like.  What do you think Jeff?

<MarkH> I would certainly argue that searching my client's documents, I should be able to rely on digital techniques. I would not rely on such techniques to subject the resultant universe of potentially producible material to a privilege review.

<TFJoshuaS> Back to Professor Nesson.  Thanks for the comments.

<MarkH> Joshua, I don't think I got that e-mail with the questions. Can I get it as a follow-up?

<TFJoshuaS> Sure.  I'll ask Talia to make sure you get it.

<TFJoshuaS> I don't think we have time for a full discussion on the issue, but something to think about:  under what circumstances, involving spoliation of digital data, should judges impose an adverse inference argument or inference as a sanction?

<TFJoshuaS> Must it be willful?  Does it matter whether the destruction happened because someone failed to turn off a retention program in time?  Does it matter whether we know the contents of what was destroyed?  Any last minute thoughts are welcome.

<TFJoshuaS> Please also remember to fill out the web forms on the Role of Judges and Feedback, which you can access through the nav bar on the left.

<MarkH> I think that goof faith requires good works. It's too easy for a defense firm to have their client send out one e-mail, and then leet the  chips fall where they may.

<MarkH> h... freud strikes.... gooD faith requires good works

<JeffL> I have seen companies respond to demands for digital discovery by asking their internal IT staff to actually implement the corporate disaster recovery plan.  If this is the typicla response to such a demand I think plaintiffs would be a better position to argue willful blindness to addressing the electronic discoveyr issue with the seriousness it demands

<JeffL> One final thought on spoliation.  I am interested in the interplay between retrieving deleted documents and spoliation.  I am reminded of a case in which a corporation, facing sanctions for wilful destruction of data, retrieved the deleted docs at issue to escape sanctions.

<MichaelaO> On the other side, the discovery requests can be so vague it is almost imposible to pinpoint the responsive materials. Are we then to suspend recycling all media until 6 months later, after the depositions have fleshed out the issues?

<MarkH> I'm not sure I undersand the significance of thet. DOes it meann that the company attempts to recover all its data in a central disaster archive?

<TFJoshuaS> Thank you all.  Those responses are valuable, particularly given that all of this chat is being maintained.  Thank you all again.  It was a pleasure discussing these issues with you.  Josh

<JeffL> It would be akin to asking the IT dept to recover ALL data resident on back-ups as opposed to having a method in place to sensibly sort, categorize and review relvant info

<JeffL> Thanks Josh

<MarkH> THanks, Josha ewt al. (esp. Charles)

<MarkH> Thanks, JEffL. Seems like overkill to me.

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<MarkH> Thanks all, I'm going to answer the questions now.

<MarkH> <poof>