Litigation by Ambush

Litigation by Ambush

MICHAEL D. BERMAN [email protected] 410-206-5049 March 12, 2012 Rule 26(f) Conference of the Parties a/k/a Meet and Confer This presentation does not contain or constitute legal advice. No attorney-client relationship is created. The views expressed are solely those of the author. Michael D. Berman

1 OLD VIEW OF LITIGATION The vector of two damn lies is the truth. Anon. Michael D. Berman 2 GOLD STANDARD & GAMING THE SYSTEM Gold Standard: Human Review of Every Document Document Review Teams of Lawyers and Assistants

Gaming the System: Give Me Everything Cookbook Discovery You Get Nothing You did not ask the correct question Boilerplate litany Unduly vague, overly broad, and to the extent it seeks privileged documents, object. . . . Motion Practice End of the Civil Trial Michael D. Berman 3 LITIGATION BY AMBUSH When the federal discovery rules were adopted in 1938, civil litigation abandoned trial by ambush

Our system is an honor system in which information is exchanged upon request Michael D. Berman 4 UNDERLYING PHILOSOPHY - CHANGING Original Intent: Lawyers handle discovery & Judges rarely become involved Led to studies and loud complaints of discovery abuse: Courts became more involved

December 2006 ESI Amendments: G. Paul & J. Baron, Information Inflation Information has changed Litigation culture must change Early (1st?)call for cooperation Michael D. Berman 5 RESULT? SATELLITE LITIGATION Decline in civility Careers have been ruined marquee sanctions Forensic experts have been sued by the law firms that hired them

Courts complain 100s of hours to resolve fights Marquee was coined by D. Willoughby, et al., 60 Duke L.J. 789 (2010). Michael D. Berman 6 UNDERLYING PHILOSOPHY Discovery is too important to be left to the lawyers Apologies to Geo. Clemenceau (war is too important to be left to the generals) M. Berman, C. Barton, and The Hon. P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA Jul. 2011), 422.

Judges take an early and active role According to 60 Duke Law Journal 789, Imposition of sanctions was at an all-time high in 2010. Michael D. Berman 7 ANTITDOTE Rule 26(f) provides a road map Michael D. Berman

8 ANTITDOTE Previously, DISCOVERY was the path DISCUSSION is the path compelled by the Rules Michael D. Berman 9 ORDERING PEOPLE TO COMMUNICATE Courts are now in the business of ordering people to communicate This is not new for over 30 years, before filing a discovery motion, attorneys were required to confer

and provide a certificate that, despite good faith efforts they were unable to resolve the discovery dispute Cynics might say it wasnt effective then and it is not effective now But Rule 16 changes the game with sanctions! Michael D. Berman 10 HOW DO YOU DO THIS? iSchool people dont speak legalese Law students dont understand networks and searching You talk exabytes and we want res judicata!

Business people just look at the bottom line Michael D. Berman 11 HOW DO YOU DO THIS?: Crossing the Great Divide But the meter is ticking And the stakes are high Michael D. Berman 12

BERMANS FIVE-STEP 26(f) PROGRAM It is free; and, Worth every penny you paid for it Michael D. Berman 13 STEP 1: BE REASONABLE Consider how every position you take will play before a neutral person Patrick Henry could say: Give me liberty or give me death, but you cant Trading is part of the game: If your opponent wants something badly, maybe

he/she will give something else up UNDERSTAND the LEGAL & I.T. Landscape Michael D. Berman 14 STEP 1: BE REASONABLE UNDERSTAND the LEGAL & I.T. Landscape What do you think will happen if you ask a big company to preserve all email or all backup media? If you wouldnt allow the opponent to access your system, should you ask them to allow you to access theirs?

How can you avoid costly steps, e.g., backup media, by looking at other sources? Have you mapped your data? Will you voluntarily offer to share your map? Michael D. Berman 15 STEP 1: BE REASONABLE For ABC Gladys has duplicated paper records and Jane has been converting slowly to computer. Can XYZ ask for both? XYZ has Supermax can ABC ask for a license? Can XYZ demand preservation of son and daughters

ESI at the law and accounting firms? Michael D. Berman 16 PRO PO RTIO NAL IT Y STEP 2 PROPORTIONAL

ITY Y T I L A N O I PROPORT PRO T

NALI O I T POR Y proporti onality Michael D. Berman 17 STEP 2

PROPORTIONALITY Marens v. Carrabas Italian Grill, Inc., 196 F.R.D. 35 (D. Md. 2000) (limiting the number of hours for document discovery). Mancia v. Mayflower Textile Servs. Co., 2008 U.S.Dist.Lexis 83740 (D. Md. 2008). RALPH LOSEY, ADVENTURES IN ELECTRONIC DISCOVERY (West 2011), 24. Michael D. Berman 38% 18 ABC v. XYZ What are the costs of each step?

Can you use the prices given to estimate them? What about the three RAID Supermax servers? Can/should XYZ ask ABC to image all 50 workstations? If so, what is a likely response? Michael D. Berman 19 STEP 3: TRANSPARENCY For two centuries, litigation has been played by holding your cards tight and springing a Perry Mason moment at trial ESI requires disclosure Rule 26(a)(1) mandates disclosure

Rule 26(f) compels disclosure Rule 26(b)(2)(C) requires cost-benefit analysis Rule 1 calls for the just, speedy, and inexpensive resolution of disputes You need to show SOME of your cards Even some bad ones! Michael D. Berman 20 ABC v. XYZ Is Bill a poster child for transparency? What about ABCs 45-day email deletion policy. Michael D. Berman

21 STEP 4: PERFECTION Do not demand perfection Do not expect perfection Courts have said that they will tolerate mistakes Pension Committee (2010) For more detailed discussion, see http://www.esi-mediation.com/2011/07/15/whatdoes-%e2%80%9cthe-making-of-a-surgeon%e2%80%9d-have-to-do-with-esi-andsoftware-glitches/ Ralph Losey has written that the word all is obsolete Michael D. Berman

22 STEP 5 COOPERATION 23 Michael D. Berman STEP 5: COOPERATION Sedona Conference Cooperation Proclamation Over 100 Judges have endorsed it Advocacy need not, and should not, be adversarial You can zealously represent your client, while you cooperate

Absent cooperation, the system cannot function and litigants will be bankrupted Electronic litigation cannot be a war of attrition World War I trench warfare bankrupted generations Michael D. Berman 24 THE RULE 26(f) CONFERENCE

The goal is to develop a discovery plan & propose it to the Court What will be preserved? How will it be preserved? What will be produced? How will it be produced? Often there will be more than one conference Two are generally ideal Research by Prof. D. Oard & Jason Baron, Esq.

Michael D. Berman 25 END PRODUCT TELL THE COURT Areas of Agreement: We will produce TIFFs except for spreadsheets We agree on the following search methodology Here is how we will handle privilege Areas of Disagreement We wont preserve cell phones they want us to We wont search backup tapes they want us to

Areas Where Parties Agree That Court Order is Needed Rule 502 Clawback Michael D. Berman 26 ABC v. XYZ

Complex facts but realistic Law students dont know much about computers iSchool students dont know much about law Each have knowledge in their own sphere Michael D. Berman 27 ABC v. XYZ Complex facts but realistic Each side has strengths and vulnerabilities Topics to Cover

Privilege Preservation Form of Production Search Michael D. Berman 28 ABC v. XYZ Privilege

You have attorney-client privileged information You have confidential medical information You may have trade secrets How do you find it, i.e., search for it? How do you protect it? What happens if you mistakenly produce it? Michael D. Berman

29 ABC v. XYZ Preservation Do you leave it where it is? If so, what happens if it is lost? Do you make forensic copies of everything? If so, what is the cost? Can you agree to forensically copying less? What is key to your case? In your system? In theirs?

What is reasonable to expect? Michael D. Berman 30 ABC v. XYZ Form of Production The Rules allow you to request the form or forms that you want Your opponent can object Once it is produced in one form, you cant get it in another form Do you want TIFFs? PDFs? Native? A mix? Why?

What are the advantages? The costs? Michael D. Berman 31 ABC v. XYZ Search What methodology? Keywords? How developed? How tested? Quality control?

Predictive Coding? Do you trust the black box? How much will it cost? How much will it save? Different techniques for privilege and for relevance? Michael D. Berman 32 Fear Factor - NBC You either grab the reins or you get dragged by the horse. Liz Spayd, WASHINGTON POST

Michael D. Berman 33 NO SILVER BULLET The Lone Ranger is a fictional masked Texas Ranger who. . . fights injustice in the American Old West. The character has become an enduring icon of American culture. PHOTO of Clayton Moore as the Lone Ranger, Wikipedia, http://www.google.com/imgres?imgurl=http://upload.wikimedia.org/wikipedia/en/c/ce/ Moore-LoneRanger.jpg&imgrefurl=http://en.wikipedia.org/wiki/

The_Lone_Ranger&h=317&w=250&sz=59&tbnid=Q93uAfx0iNrYcM:&tbnh=94&tbnw=74 &prev=/search%3Fq%3Dlone%2Branger%26tbm%3Disch%26tbo %3Du&zoom=1&q=lone+ranger&hl=en&usg=__2X04M1OLh5ttaqy231dVYtTUj7A=&sa =X&ei=ter_TaCqEaPd0QHd_bTRDg&sqi=2&ved=0CDsQ9QEwAQ 5-STEP PLAN - A RULES-BASED APPROACH: REASONABLENESS, PROPORTIONALITY, TRANSPARENCY, COOPERATION, IMPERFECTIONS Michael D. Berman 34 ABC v. XYZ What is at stake? Do you look at allegations of$600K + $1 million?

Do you evaluate them? Plaintiff has cash flow problems: That is relevant to what is reasonable But do you bare your throat and discuss it? There is a ten-year course of conduct: Is all ESI for 10 years relevant? How will you handle it? Michael D. Berman 35 ABC v. XYZ The cost to preserve .wav files is $100 per GB

The cost of processing is TBD On June 1, XXX0, ABC received a voice mail order from the surgeon Ms. B then left a voice mail order on XYZs system How do you analyze? Relevant? Preserved? Producable? Proportionate?

Michael D. Berman 36 ABC v. XYZ Why is there a mention of typewriter ribbons in an ESI class? Does it give one party leverage? Jason spoke of asymmetry where are there asymmetries here and how can you use them? XYZ has data wiping software Is that OK? How can you use it in arguments?

What is the import of Bill, the rogue employee? Why is he in the problem? Michael D. Berman 37 M. Berman, The Rule 26(f) Conference of the Parties, in M. Berman, C. Barton, The Hon. P. Grimm, eds., MANAGING E-DISCOVERY AND ESI FROM PRE-LITIGATION THROUGH TRIAL (ABA 2011). Michael D. Berman 38

In Zubulake, the court wrote that the key problem was a failure to communicate: Talk with your client; Negotiate with your opponent. Online Sample Mock Rule 26(f) Conference of Parties http://www.esi-mediation.com/2011/08/07/mock-rule-26f-conference-ofparties-posted-online/ http://vimeo.com/29144124 Michael D. Berman 39

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