Hobby horse gallops into my neighborhood

July 2, 2014

Strange thing today. Because one (and only one!) out of my 600+ LinkedIn contacts hit “Like” on a discussion about the Supreme Court’s decision in the Hobby Lobby case, that discussion in turn showed up on my LinkedIn Home page (the landing page that shows all the updates from your contacts). Normally, the discussions I see on LinkedIn are started and commented on by people I know or kind of know. Not this one.
Mr Burns Hobby Lobby protest sign
The initial discussion post by “Kimberly Patterson Unconventional HR” is titled, provocatively, “SCOTUS is not controlling your uterus.”

As you can guess from the title, Ms Patterson’s post supports the Supreme Court majority (5-4) ruling that a closely-held corporation can exclude certain forms of contraceptive coverage from employee healthcare benefits on the basis that it offends the owners’ religious beliefs. By some magical transitive power, the corporation has a religion. (If the current owners sold Hobby Lobby to new owners who are Jewish, would it need a circumcision?)

At last count it had 180 comments. For a LinkedIn discussion, that’s a lot. It’s a slow week, falling between Canada Day and the Fourth of July, so I took a closer look. Comment threads in places like online newspapers make you feel like you need a shower and a stiff drink after reading them. I expected better from a LinkedIn discussion.

Sadly, while it was better, it wasn’t better by a whole lot.

First, and this is good news, at least from my perspective. The comments critical of the post, and ergo the Supreme Court ruling, outnumbered those supporting it 88-67. Meaning most of the commenters opposed allowing business owners to impose their religious beliefs on their employees’ private lives in this way. The remaining 25 of the 180 total were either neutral, ambiguous or unintelligible. I also discounted comments that were identifiably not from Americans.

Second, and this is the bad news, some of the comments favoring the post and the court’s decision were disturbing and disgusting. Cave ManOne decried “moochers, socialists, and atheists”. Another said women wanting birth control should learn self-control and “keep their legs together.” Another wrote “the left loves pimping minorities and women.” Several railed about their freedom being taken away by Obama and Obamacare. None of the comments opposing the court’s ruling sunk to this level. Nor did they have spelling and grammatical errors which were common on the pro side. Just sayin’.

Third and finally, and this is good news again — apart from the initial Like by one of my contacts that brought this discussion into my line of sight, nobody else from by 600+ contacts either added a comment or hit “Like”. All of the comments and “likes” were total strangers to me.

My homies know the proper use of LinkedIn. I’m proud of you.



Want proportionality? Make the producing party act first.

May 12, 2014

Here’s a modest proposal for achieving proportionality in e-discovery. Scrap the whole ridiculous skit where the request for production is the opening salvo.

Instead, change the rules so the producing party makes the first move. Yes, I know it’s a little late to suggest this when the current round of rules amendments are so far down the road, but give this some thought.

By their very nature discovery requests tend to be overbroad, if not outright bellicose, commonly fashioned from boiler-plate precedents that include demands for telegrams and dicta-belts, and setting the stage for arguments and motions by casting a far wider net than necessary.

If they ask for it, you’d better look for it!

One of the two most controversial proposed amendments to the Federal Rules relates to proportionality. After the April meeting of the Rules Committee in Portland, revised Rule 26(b)(2)(1) will permit a party to

“obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

These well-chosen words are as good an attempt as we’ve seen to give guidance to the profession, and to address the problem of the discovery tail wagging the litigation dog because of the massive proliferation of potentially discoverable information in our electronic age.

But it won’t solve much.

This is because in the US we “request first — respond later” as set out in Rule 34. It’s always been done that way, well since 1938 anyway. Nobody has given that a second thought, neither the drafters of the latest amendments nor the thousands of public commenters, so while some details of Rule 34 will be changed, this basic paradigm was not touched. As long as it stays that way, we will still see much the same arguments over proportionality and scope, regardless of the (probably) helpful revisions to Rule 26(b)(2)(1). Because the existing model itself sets the stage for overreach and dispute.

Requesting parties issue vague and over-broad requests because the requestor doesn’t know and cannot anticipate how the opponent’s information is organized, or what range or subset might be all that’s necessary to cover all that is relevant. As a corollary to that, companies preserve electronic data more broadly than they should have to, just in case. Disputes over burden of production are misdirected from what documents really matter to what documents were over-broadly requested.

So once again I say: Make the producing party act first. That’s the way it’s done in Canada. Ontario is the largest common-law jurisdiction in Canada and the other eight English-speaking provinces usually follow its lead. So let’s look at the Ontario Rules of Civil Procedure. (Canada’s federal court system is not analogous to the US.)

Before going further, a disclosure and disclaimer: I am a dual citizen of Canada and the United States, received my J.D. from the University of Toronto, and practiced as a litigator in that city for 11 years before going into legal technology and electronic discovery consulting. I moved to Arizona in 1994. This is not a paean to the superiority of all things in Canadian law being superior to the US. Between US and Canadian law and procedure, the similarities vastly outweigh the differences. Everyone who has worked in litigation on both sides of the border would agree. But here is one seemingly minor difference in the rules that has a major beneficial impact in the practice.

I’d never listen to anything from THIS place.

Understand first that the scope of discovery in Ontario is virtually no different from the scope in the US. Ontario Rule 30.02 reads in part:

“30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10 whether or not privilege is claimed in respect of the document.”

(Obviously, this is not to say that privileged documents have to be turned over, but their existence must be disclosed and the reason for the claim of privilege stated, per Rule 30.03 (2)(b). How disclosure and production happens is covered in other subrules to Rule 30, and in the case of electronically stored information (ESI), also in Rule 29.1. My blog post from 2010 when Ontario Rule 29.1 was adopted covers this. )

Note that Ontario’s “Every document relevant to any matter in issue” sounds an awful lot like US Fed. R. Civ. P. 26(b)(1)’s “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”

Where Ontario is
THIS Ontario. Not the town in California.

In neither the US or most of Canada is the scope of discovery restricted to just those documents on which a party intends to rely, unlike continental Europe.
French guy
Je vous donnerai rien!

While broad American discovery is not the norm in most of the world, neither is it unique to the US (sorry America, we’re not always exceptional), and the country that comes closest to the breadth of US discovery is Canada, at least on paper. In practice, it doesn’t go as far.

Here’s why. In Canada, they don’t start by firing off requests for production. The obligation to produce relevant documents is automatic under the Ontario Rules and falls first on the producing party.

Ontario Rule 30.03 (1) reads “A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.” [emphasis added]

Aff of Docs
             Yes, it’s as exciting as it looks.

A later subrule describes how the affidavit should separately list documents being produced, and documents for which privilege is claimed. (In practice, for large productions documents are not individually listed, but grouped, as “emails from persons X, Y, and Z, 2009-2012” etc.)

Here come the teeth. The subrule titled “Lawyer’s Certificate,” is where attorneys have to put their name on the line:

30.03 (4) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent, (a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action [emphasis added again]; and (b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.

Once again, this subclause (a) drives home the point that, just as in the US, everything relevant and not privileged must be produced, and moreover, Ontario lawyers had better think twice before cavalierly turning a blind eye to under-production by their clients. As for subclause (b) about what is likely to be relevant to the allegations made in the pleadings, while it might be thought that Ontario’s standards of pleading require more specificity than the US Federal Rules, that is no longer true, if it ever was, since the US Supreme Court decided Bell Atlantic v Twombly 127 S.Ct. 1955 (2007) and Ashcroft v Iqbal 556 U.S. 662 (2009).

(It might have been thought that the standards of pleading are more lax under the US so-called “Notice” pleading under Fed. R. Civ. P. 8(a)(2)”a short and plain statement of the claim”, than they are under Ontario’s Rule 25.06 (1) that “Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence…”; but the difference if ever there really was one is now non-existent ever since the two decisions above-mentioned.)

Client, have you REALLY told us about all your ESI?

All right, you say. What happens in that northern utopia if the receiving party believes the opponent’s production is not complete? The same thing that happens here in the US. A motion to compel, which there is brought under Ontario Rule 30.06. But think about it. The lawyer acting for the receiving party has to think long and hard before doing that, because it in effect says to the other lawyer (and asserts to the court) “your certification was false.” The receiving party does not lightly demand more; counsel has to make a bona fide assessment whether or not the producing side has done enough to fulfill its obligations.

The psychological, social, and professional dynamic is fundamentally different just because their rule reverses who goes first.

The producing party’s initial production creates facts on the ground right away, and if the receiving counsel wants to argue it’s not enough, s/he needs some genuine basis for doing so. And contrary to a silly cultural stereotype, they will not hold back from demanding more out of politeness. Canadians aren’t that nice. Least of all, Canadian litigators. If they see a reason to suspect there’s more out there, they’ll go after it as aggressively as here in the US. But the starting point is having a reason. Lawyers who have no reason other than being a jerk develop a reputation quickly, and for them even a big city like Toronto can become a small town. Back when I practiced there, we knew who the jerks were.

(Canadians have stereotypes about Americans too. The Canadian half of me thinks my American half is stupid. My American half doesn’t care.)

Ford May 1-14
Speaking of being a jerk…

In the US, with the requesting party making the first move by a request for production, demanding too much is so commonplace that it sets the stage for a time-wasting and unnecessary proportionality or burden argument from the get-go. The imperatives of the situation US lawyers are placed in makes jerk behavior more likely, because it’s safer than failing to ask for enough.

This isn’t to say that Ontario judges don’t see fights about scope and proportionality; their rules committee has had to cover the principle of proportionality too, which means that it’s still an issue there. But the fights tend to be less common, and the volumes of ESI that are reviewed and produced tend to be less.

Again, this also isn’t to say that everything about their courts is better than here. Far from it. Complex civil cases take very much longer from commencement to trial there than they do in the US; a recent landmark decision on auditors’ liability took 12 years from initial filing to trial, a glacial pace that would not be tolerated here. Much of this slowness is due to insufficient allocation of resources to the courts in Ontario and elsewhere in Canada; the system moves with less urgency than a crowded DMV office. It was that way when I practiced law there 20 plus years ago and it’s still that way now.

But those issues aside, the Canadian practice of produce first then fight only if the receiving party believes relevant information was not produced has the effect of reducing the money and time spent on discovery, while still preserving the principle that broad discovery is the best avenue to a just result.

Cliff Shnier
Insightful Electronic Discovery Consulting
Phoenix, Arizona


Northern Exposure — E-Discovery in Canada

September 16, 2010

On New Year’s Day, 2010, the province of Ontario became the latest North American jurisdiction to amend its rules of civil procedure to address the discovery of electronically stored information. Yet it mentions the phrase “electronic discovery” once and once only. The United States Federal Rules of Civil Procedure were amended in 2006 in at least twelve places to specifically refer to electronically stored information in discovery. Thirty states since that time have followed suit. One Canadian province, Nova Scotia, has also amended its rules. Now Canada’s largest province, home to nearly one-third of the country’s population and more than half of its lawyers, has amended its rules of civil procedure in a unique way a way that might best be described as either troublingly vague, or a stroke of genius. The relevance to US practitioners is this: in many categories of complex litigation, be it in the financial sector, or in intellectual property, or in energy, actions that may be in the US Federal Courts may very well have a Canadian parallel action, and most often that will be in the Superior Court of Ontario. If you think that “up there” e-discovery is not as far along as in the US, think again.

Ontario’s amended Rule 29.1.03(4) reads as follows: “In preparing the discovery plan, the parties shall consult and have regard to the document titled “The Sedona Canada Principles Addressing Electronic Discovery” developed by and available from The Sedona Conference.”

That’s it. “Electronic discovery” is mentioned only here, within the title of a document that lawyers “shall consult and have regard to.” For observers of the U.S. legal scene, this seems naïve. How do you enforce a rule like this? What Ontario has done either invites difficulty, because on its face this looks vague; or, it has placed on its legal profession – including its judiciary — a clever mandate to become well-informed and act like grown-ups. It may turn out to be the smartest way yet that any jurisdiction has amended its rules for electronically stored information.

Consider this. Aside from the odd fact that a tourist town in Arizona is mentioned in the rules of a Canadian province 2000 miles away, this is remarkable for other reasons. No other jurisdiction has actually mentioned the Sedona Principles or the Sedona Conference by name in its rules. Look at the U.S. federal rules amendments and commentary. You won’t find it, though it’s a known fact that The Sedona Conference was a key source of input to the U.S. rules committee. Notice that the document referred to in Rule 29.1.03(4) is not simply the list of enumerated principles, but the entire publication, 54 pages in length. That’s a lot of content, but not burdensome.

Now take a step back and look at the context around this one subrule, the broader “discovery plan” rule 29.1 This rule requires the parties to litigation to agree upon and file with the court a written discovery plan within 60 days after the close of pleadings. Subrule 29.1.03 (3) states: (3) The discovery plan shall be in writing, and shall include, (a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action; (b) dates for the service of each party’s affidavit of documents (Form 30A or 30B) under rule 30.03; (c) information respecting the timing, costs and manner of the production of documents [under Rule 30.01(1) “documents” includes electronic data] by the parties and any other persons…. (d) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action. The subrule immediately following is the one telling the parties they “shall consult and have regard to” Sedona Canada.

When read in context, the significance becomes clear. The first Principle states “Electronically stored information is discoverable.” A discovery plan that doesn’t deal with electronically stored information will violate Rule 29.1. In all likelihood, so will a discovery plan that doesn’t take into account the other Sedona Canada principles, such as:

 • Principle 3, which states that parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information as soon as litigation is reasonably anticipated.

 • Principle 4, which states that parties and counsel should meet and confer soon and on an ongoing basis.

 • Principle 8, which states that the parties should agree early on the format in which electronically stored information will be produced.

• Principle 9, which states that the parties should agree on or seek judicial direction to protect privilege and confidentiality.

Moreover, as it is the entire 54 page document and not just the list of principles, cursory attention will not suffice. The list does not mention metadata. However, in the discussion under Principle 8, we find at page 30: “The parties should strive to agree on a methodology of production that (a) preserves metadata and allows it to be produced when relevant.” The document explains what metadata is; it also does a good job explaining in clear and concise terms a lot of the other terminology and issues pertaining to electronic discovery.

The amendments to the U.S. rules have been in effect for nearly three years. Yes, they neatly specify that at the Rule 26(f) meet and confer the parties discuss the preservation, forms of production, and procedures for dealing with inadvertent disclosure of electronically stored information. And yes, they provide a process for requesting a specific form of electronic production, and a procedure for objecting to that requested form, and a default minimum standard for a form of production, under Rule 34(b). And so on.

Yet for all that specificity, we’ve seen disputes and lawyers getting into trouble. Nothing in the federal rules tells lawyers to read the U.S. version of the Sedona Principles. In all likelihood, this means that most U.S. litigators have not read the Sedona Principles. It might have saved some of them from a lot of trouble. Like Canada’s version, it is literate, educational, and at 102 pages, not unduly burdensome. The operative words of the Ontario amendment are “shall consult and [shall] have regard to” the Sedona Canada Principles. Though it sounds polite, this is not a suggestion. It is mandatory language telling lawyers to acquaint themselves with material they need to know. For additional “teeth”, look at Rule 29.1.05: “On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule.” This is in addition to the court’s power to impose cost penalties and other sanctions found elsewhere in the Ontario rules, and in its inherent authority. Keep in mind, “costs” in Ontario generally means something much more than in the United States. It means that the losing party will pay a sizeable chunk of the winning party’s legal fees. That’s a mighty big set of teeth right there.

The deck grows cold

November 6, 2009

It was a long hot summer for securities class action plaintiffs, and only with the cooling weather around early November have their fortunes turned back upward — a little. 

Back in May, I posted about the wins versus losses on motions to dismiss securities class actions in litigation arising out of the subprime mortgage / credit crisis.  Assigning a value of plus one for denials of motions to dismiss, minus one for dismissals with prejudice, minus 0.5 for dismissals with leave to amend, and minus 0.25 for a mixed result, I concluded that as of May 27/09, the count was actually running in favor of the plaintiffs, at plus 2.75.   I had miscalculated.  The count in favor of the plaintiffs was even better than that — it was 3.25.  Definitely back then it was the time for a Blackjack card counter to increase the size of his bets. 

At that point we were about eighteen months into this kind of litigation, and there had been 25 rulings.  Six months and seventeen rulings later, at nearly 24 months since the first ruling, it’s time for another look. 

joe pesci

Guys like these can make it very uncomfortable at the Blackjack table

What a difference six months makes.  Of these 17 further rulings, twelve favored the defendants.  Five were dismissals without prejudice, seven were outright dismissals with prejudice, and only five were denials of motions to dismiss.  If we had taken a snapshot in late September, we’d say the “house” (defendants) had roared back with a vengeance. The count at that point had hit minus 2.25, a swing of negative five and a half.  If plaintiffs were blackjack players, at that moment in time they’d be the unfortunates getting beaten up in the back room of the casino. 

It’s only by virtue of a couple of very recent wins for plaintiffs in late October and early November that we’re now back up to just over zero, at plus 0.5, and instead of being the guys with the broken hands and shattered kneecaps lying next to the garbage cans in the back alley behind the casino, the plaintiffs are still able to walk out in the sunlight on the strip, although a bit dazed.   

Right now, there’s no significant trend favoring plaintiffs, and no significant trend favoring defendants.  The current trendline (click here for TrendlineChartNov06-09) starting from day one runs at only a slight slope upward to the right, not enough to say the plaintiffs are still on a winning streak.  The angle of the trendline back in May was much steeper in the plaintiffs’ favor.  

As before, my source for these statistics is Kevin LaCroix’s excellent and authoritative blog, www.dandodiary.com.

Getting rid of déjà vu

August 3, 2009

The bad news about electronically stored information is that there’s so much of it.  The good news is that it can easily be deduped.  And the really good news is that full-scale deduping can get rid of a lot more than you might have guessed.

In the August 2009 issue of Law Technology News, available at http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=3298502 Anne Kershaw and Joe Howie report on a study they conducted in May by surveying 18 e-discovery vendors.  Confining the scope strictly to pure de-duping (as opposed to near-duplicate detection, e-mail threading, etc.), they found that deduping within a single custodian reduced the number of documents by an average of 21.4 percent; if performed across multiple custodians, the average reduction nearly doubled to 38.1 percent. 

Yet the vendors indicated that while they all offered cross-custodian deduping, only 52 percent of the projects got it; in the remainder, their clients opted for either single-custodian deduping (41 percent) or none at all (seven percent). 

Until a few years ago, for many e-discovery vendors, the machine burden of deduping across custodians was much greater than doing so within one custodian’s collection.  Some vendors charged nothing for deduping within custodian but charged extra if done across custodians, to compensate for the extra machine time and effort. 

Also, in the then-common linear review paradigm (each custodian’s data kept together and reviewed as

Without de-duping across all custodians, you need a huge number of reviewers

Without de-duping across all custodians, you need a huge number of reviewers

a unit) deduping within custodian only was supported by the prima facie plausible argument that “it’s a more accurate picture” of the data to know who had what, even if it did mean that the same document was going to show up multiple times in different custodians’ collections.  The mere fact of it being in Al’s collection as well as Barbara’s and Charlie’s was somehow considered sufficient differentiation to justify keeping all three. 

Deduping technology is now much better, so cross-custodian deduping no longer grinds the system to a near halt.  On top of which, as this article points out, if you need a report as to what other custodians also had a particular document, just about any vendor or hosting platform can generate this. 

Articles such as this one by Anne and Joe, and other consultants, should reassure lawyers that deduping across the entire database is not just all right, it’s practically incumbent upon them.  As these authors state, with the concurrence of several judges they consulted:   “Lawyers who fail to check for duplicates across multiple custodians, instead removing only duplicates from within the records of individual custodians, end up reviewing at least 20% more records on average. Whether or not their document review bills are ever audited, these lawyers are not meeting their ethical obligations to both clients and the justice system.”

Some things DON’T happen first in California

July 9, 2009
Yes, we're still broke, but at least we've solved forms of production of ESI

Yes, we're still broke, but at least we've solved forms of production of ESI

Governor Arnold Schwarzenegger signed California’s Electronic Discovery Act on June 29, 2009 to take effect immediately “due to urgency”.  Two and a half years after the federal rules amendments, and now they say it’s urgent?  Considering the condition of the state’s finances, you’d think California was going to win a pile of money if it got this done by the end of June.   

Here’s the link to Assembly Bill 5, the Electronic Discovery Act: http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0001-0050/ab_5_bill_20090629_chaptered.pdf

The California Code of Civil Procedure is statutory, so amending it has to be by statute rather than a regulatory power delegated to the court. 

In substance, the California amendments are similar to the amendments to the Federal Rules that went into effect December 1, 2006.  In style, the California amendments don’t have any of the look and feel of the federal rules.  They go into greater detail about steps to be followed by the parties in certain situations, and they follow the numbering scheme of the California CCP, which bears no resemblance to the numbering in the federal rules.    

Other states, such as Arizona, vest the authority for their rules of civil procedure in the courts, as we do federally, subject to a theoretically-possible legislative reversal.  The Arizona rules amendments pertaining to electronic evidence went into effect January 1, 2008 by order of the Chief Justice of the Supreme Court of Arizona, and the numbering and language is almost identical to the Federal Rules.   Simpler that way.

Postscript:  The words “Governor Arnold Schwarzenegger” almost sound normal now, he’s been in that post for so long.  The novelty and patent improbability of those three words together has nearly worn off.  Just in the nick of time, we can now start getting used to “Senator Al Franken.”  America, what a country!