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.

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!

Borderline Disorders

July 5, 2009


Other countries have not tailored their laws to suit the convenience of American trial lawyers.  How inconsiderate.

Don't expect to just dance right in to collect the data either.

Don't expect to just dance right in to collect the data either.

I know this is a hard concept for Americans to grasp, but the force of U.S. law does not extend outside the U.S. If you’re litigating a case where discoverable information sits in other countries, don’t think that you can swagger in there John Wayne-style, collect it, and bring it back to the U.S. for a look-see — not even if the data is located on servers belonging to a European subsidiary or parent of your corporate client.  It’s not theirs to give and it’s not yours to take, at least not without first jumping through a few legal and cultural hoops. 

Privacy laws outside the U.S. make what is otherwise routine and procedural here illegal over there.  Lawyers representing U.S. companies have been prosecuted in Europe for collecting electronic data for U.S. legal proceedings.   

You can either comply with the law here or you can comply with the law there, but you can’t easily do both.  It’s not that you can’t take electronic data outside of countries with privacy protection laws —  you can, but only if you do it the right way.  And sometimes it’s just easier to work with it there instead of trying to get it out. 

 On day two of LegalTech West Coast in Los Angeles June 25, one of the morning presentations was titled Globalization and International E-Discovery, moderated by George Rudoy, with Browning

Not wanting to scare you or anything, but you really won't like it if you're arrested over there.

Not wanting to scare you or anything, but you really won't like it if you're arrested over there.

Marean and Michael R. Polin as panelists.  I’m glad I chose this session, and I am sure the rest of the audience feels likewise.  If the materials and audio become available online, I recommend them.  Another recent presentation I recommend is a FIOS webcast presented April 21, 2009 titled The Sedona Conference® Update: Addressing the Challenges of Cross- Border e-Discovery, presented by FIOS and the The Sedona Conference.  This is available online at the FIOS website.

For a country that traditionally prizes the rights of the individual, the United States does a poor job of protecting personal privacy.  Other countries have comprehensive privacy protection laws.  Other than a patchwork of topic-specific protections, such as medical information under HIPAA (the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191), we do not have privacy legislation. 

Privacy protection in the U.S. is mostly about protection against governmental infringement, such as the Fourth Amendment to the Constitution prohibiting unreasonable search and seizure.  We don’t seem to care much about nosy intrusions by non-governmental entities.  Privacy protection in Europe is about protection not only from state-sponsored abuses – Europe’s twentieth century experiences of these are truly horrific [Note 1] —  but also against abuses by corporate and other private interests.  For example, individual credit reporting is much more restricted in Europe, limited for the most part to a registry warning of persons who have defaulted on consumer debt. 

In the U.S. you have to actively opt-out of receiving telemarketing calls.  In Europe, they don’t have your information in the first place, so they can’t bother you.  While it’s been quite a few years since I’ve had dinner at a friend’s home in Europe, I have a hunch that their dinnertimes are interrupted by annoying telemarketing calls a lot less than ours are.  

Most other industrialized countries, civil code jurisdictions in particular, have a much more restricted scope of discovery in their civil litigation.  However that is not what prevents data from other countries from entering the US.  It’s a combination of Directive 95/46/EC of the European Parliament, part one here , part two here, and the privacy legislation of each of the member states that prevents such transfer.  For a table of links to all the EU member privacy protection statutes, go to http://ec.europa.eu/justice_home/fsj/privacy/law/implementation_en.htm.  Not all of them have English translations available.  

EU Directive 95/46 sets the minimum standard for privacy legislation of the member countries.  Some, like Germany’s, go quite a bit beyond the directive’s requirements.  However, provided another member country’s legislation meets the minimum requirements of the directive, and they all do, then data can be transferred from one member country to another.  

Outside of the European Union and the European Free Trade Area, only two non-European countries have fulfilled the EU’s requirements.  The United States is most definitely not one of them.  These two countries are Canada and Argentina.   For the EU’s certification that Canada is compliant, go to http://ec.europa.eu/justice_home/fsj/privacy/docs/adequacy/canada_st15644_06_en.pdf

In the case of Canada, this is somewhat ironic.  All of Canada’s provinces except Quebec are common blame-canadalaw jurisdictions with broad discovery like the U.S. (see Ontario’s Rule 30 here) , but that doesn’t mean data can be freely gathered there and brought into the U.S. for the purposes of civil litigation.  Canada, like the 27 member countries of the European Union, has comprehensive privacy legislation, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5. (known as “PIPEDA”.)  You’ll need to engage local counsel in Canada to assist you with this legislation and any other relevant provincial or federal laws in Canada before gathering any electronic data there and bringing it south of the border. 

Conversely, while its discovery and other rules of civil procedure are substantially the same as the U.S. and significantly more expansive than continental Europe, data from continental Europe that cannot be transferred into the U.S. can be transferred into Canada.  Again, a caveat – get the advice of local counsel in Europe or Canada – ideally both — to make doubly sure that it will be all right to move data from continental Europe to Canada for hosting on a server for your reviewers to log in to from California.  

What constitutes transfer of data outside the EU?  Is it copying it from its source and then loading it onto a server, and if that server is within an EU member state, all is well?  Or does transfer constitute ability to access online – so even if the data reside on a server on European soil, does a review room in New York with access to that database on that server in Europe violate that European country’s privacy laws and the EU’s directive?

The answer depends on the specific country’s legislation.  Some of them are so strict that the review room itself has to be on European soil.  Others are fine with access from anywhere, as long as the digital files themselves remain housed on media located within Europe, or within a country that is certified by the EU as compliant with its privacy directive.  Quick quiz, what did we just say those two countries

Don't cry for me or your data.

Don't cry for me or your data.

are?  Once again, Canada and Argentina.   

Another question:  is it simply the fact that the data is electronic, or the fact that the data collection may contain items within it that are personal in nature, that runs afoul of European privacy laws? 

Asking that question betrays my American frame of reference and way of thinking.  We’re now into a discussion not just of differences in law, but of differences in culture.

Here in the U.S. an employee has no expectation of privacy when he or she uses employer-provided equipment and infrastructure to shop online or to send an e-mail to a spouse reminding him or her to pick up the dog from the veterinarian or the kids from day-care, whereas in Europe an employer has no right to those personal communications and transactions notwithstanding they were done on company time and equipment.  Different societal priorities. 

But it goes further than that.  The splitting of a person into a “company self” and a “personal self”, while normal to our way of thinking, seems to be an unknown concept in Europe.  An e-mail sent or received by an employee entirely in his or her corporate capacity is still “personal” in the laws of European countries because it has that employee’s name on it.  A person is a person is a person, even when he’s working for The Man.  In other words, merely removing what we in the U.S would regard as the “really” personal contents of an individual’s corporate e-mail box (the messages to friends and family, the receipts for online purchases, etc.) does not render the rest of it all right to transfer from Europe to the U.S. 

So, when is it all right to transfer European data to the U.S? 

 First, maybe consent will suffice.  If consent to the transfer is given by the person identified as the “data subject”, then that takes you a long way toward being all right with bringing it in.  Note that you’re not home safe yet.  In some source countries, that consent might be sufficient; others with more restrictive legislation may still have a problem with what happens downstream with data in U.S. discovery, because it may have to leave the control of the company initially collecting it.  Another point to remember is that in some countries, a consent given by an employee at the request of an employer is presumed not to be voluntary, in other words, no consent at all. 

Second, you might consider getting official authorization.  All EU countries have a privacy commissioner (Canada seems to have dozens), and their respective privacy statutes all provide for a procedure to seek the approval of this official for the transfer of data out of the country to the U.S. Make a good case that the removal of the data falls within one of the enumerated reasons to permit it, and you’re good to go.  Of course, the wheels of European bureaucracy can grind even more slowly than the wheels of U.S. justice.

Third, there’s the “Safe Harbor” route.  These two words should not be confused with the safe harbor concept in Fed. R. Civ. P. 37(e).  We’re talking about totally different harbors here.  The United States Department of Commerce maintains a list of companies that are certified as compliant with the EU privacy directives.  Data can be transferred from Europe to the U.S. if it is going into the hands of one of these companies. 

Safe Harbor certification is self-certification.  It has to be.  The Department does not have and should not be expected to have the resources to inspect the data handling practices of hundreds or thousands of companies.  Companies have to re-certify themselves each year, and they are subject to a of Department of Commerce audit, which may be triggered by a complaint, and if they fail that audit, they’re off the list and potentially subject to other penalties for having inaccurately certified themselves. 

Because of the arguably subjective and transitory nature of Safe Harbor certification (companies on the

This place might be safe.

This place might be safe.

list one year can be gone the next), one Canadian e-discovery vendor distributed fliers at New York LegalTech a couple of years ago with a photograph of the Toronto waterfront with the caption “Your safest safe harbor.” 

 Aside from comprehensive privacy acts passed since 1995 by various member states to comply with EU directive 95/46, there are also “blocking statutes”.   Some of these have been around for a longer time.  These are laws that may be quite specific in prohibiting the removal of data from a country. 

As Browning Marean told the audience at LegalTech in L.A., even a nice you don’t look foreign country like Canada can get unpleasant this way.  Two decades ago, well before Canada’s PIPEDA legislation, Browning had a trial in U.S. District Court in New Mexico.  A Canadian blocking statute prohibited the removal of certain industry-specific information from Canada.  This had prevented his client from being able to fulfill its discovery obligations. 

Too bad.  The judge entered default judgment against Browning’s client for 2.4 billion dollars.  Back then, that was a lot of money. 

Sometimes there's a little sibling rivalry

Sometimes there's a little sibling rivalry

That judge’s imperious ruling seems to imply that Browning and his client should have ignored Canada’s law; this fits completely with the stereotypical American who can’t quite grasp the idea that the reach of U.S. law ends at the border.  How dare some other country presume to interfere with our discovery processes even if it is on their soil?  Think of Ann Coulter’s diatribe in 2007 on Fox News (where else?) that Canada “better hope the United States doesn’t roll over one night and crush them”.   (You can watch this, if you really must, at http://www.youtube.com/watch?v=LmcZG87Fmxc.) 

As I mentioned earlier, if the materials from the West Coast LegalTech presentation by George Rudoy, Browning Marean, and Michael Polin do become available online, I recommend them.  Most of this post has been about Europe and Canada, and this was mainly Browning’s to speak about, but the session gave equal time to the rest of the world.  George had some interesting information about Russia and other former Soviet bloc countries.  Did you know that Russians will never sign anything?  You could have a hundred Russian employees of a multinational company, all perfectly agreeable to their data being removed from the country to the U.S., but ask them to sign their name to paper consenting to this?  Forget it.  They’ll never do it.  Memories of the KGB and the gulags die hard. Michael Polin has an international law practice that specializes in China.  If you think the stuff about Europe was complicated, try navigating your way around the laws in Beijing. 

The key take-away from all speakers regarding all countries – you will need to work with local counsel. 

If you don’t know, just ask!

June 11, 2009


Luckily the LAPD excels in crowd control.

Luckily the LAPD excels in crowd control.

“The Rule of Law in the Wild Wild West:  Ethics and E-Discovery.”  This is the title of the keynote address on the second day of LegalTech West Coast in Los Angeles Thursday June 25, less than two weeks from now.  My prediction:  it will attract a standing room only audience.    The mailing describes this session as “essential and timely”.  It sure is.  I can visualize an overflow crowd of anxious lawyers, all seeking advice on how to avoid punishment from the courts for e-discovery errors, spilling out of the convention center and onto Figueroa Street.

 The law of electronic discovery has taken a sharp turn into the scary realm of sanctions against lawyers.  First, the Qualcomm[i]  decision in January 2008.  In that case the company Qualcomm was sanctioned $8.5 Million for withholding 46,000 relevant e-mails, and several of its lawyers were referred to the California State Bar for discipline for having turned a blind eye to the obvious red flags that their client wasn’t making full disclosure. 

Now we’ve got a case where it’s the lawyers only who are getting sanctioned:  Bray & Gillespie Management et al v Lexington Insurance Company, 2009 WL 546429, United States District Court, Middle District of Florida, March 4, 2009.  For the full decision, click here.

Magistrate Judge Karla Spaulding had harsh words for two individual lawyers and their law firm, Reed Smith, representing the plaintiff Bray & Gillespie (B&G). 

 A little history:  The action had been commenced in February 2007.  B&G had originally been represented by Anderson Kill & Olick (AKO), and the partner there having carriage of the action, “Partner E”,  moved from AKO to Reed Smith in January 2008, taking this case with him.  In March 2008 Reed Smith officially filed as the law firm of record for the plaintiff.  Another lawyer at Reed Smith, “Partner B” began working on this matter by May 2008.

In September 2007 plantiff’s counsel (Partner E, then still at AKO) received a Request for Production from the defendant Lexington’s law firm (Carlton Fields) requesting electronically stored information in native format with metadata.  Counsel for the plaintiff did not object to the requested form of production

  • neither within the 30 day limit after receiving the RFP imposed by Rule 34(b)(2)(A) ;
  • nor in response to a motion to compel in January 2008 – we’re now at the time that Partner E moved from AKO to Reed Smith;
  • nor at a discovery conference in March 2008,
  • nor in a response to a renewed motion to compel in March 2008 – we’re now in the month that Reed Smith became official attorneys of record for the plaintiff;
  • nor any time up to their delivery of discs purporting to contain responsive electronically stored information on April 30, 2008. 

Rule 34(b)(1)(C) provides that the requesting party may specify the form in which it wishes to receive production of electronically stored information, and under Rule 34(b)(2)(D) the responding party may within 30 days object to the requested form, stating the form it intends to use instead.  Rule 34(b)(2)(E) provides that in the absence of any specification of a form of production in the request, the producing party must produce it in the form in which it is ordinarily maintained or in a reasonably usable form. 

The committee notes to this rule state:

And don't try converting it into this form either.

And don't try converting it into this form either.

“The rule does not require a party to produce electronically stored information in the form in which it is ordinarily maintained, as long as it is produced in reasonably useable form.  But the option to produce in a reasonably useable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.  If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”

As Craig Ball commented six months before the amendments to the Rules became effective, “That means no more “naked” .tif or PDF files stripped of searchable data layers.”[ii]  (Forget about searching the internet for a photo to go with this phrase.)

And what did the defendant’s attorneys receive from the plaintiffs’ law firm?  TIFF images with no searchable data whatsoever, approximately 100,000 e-mails and roughly an equal number of other electronic files that may or may not have been attachments to the e-mails; there was no way to affiliate any e-mails to any attachments.  In other words, exactly what Rule 34(b), the Rules Commentary, other commentators, and the flood of CLE’s on the rules amendments, had been all saying since early 2006 would no longer be acceptable. 

After objecting to this form of production in mid-May, Lexington filed a motion for sanctions against B&G, and the hearing was set for June 25, 2008.  At that hearing, Judge Spaulding heard testimony from, among others, Daryl Teshima, a California lawyer and well-known electronic discovery consultant. 


samsung-pn63a650-reviewDaryl “testified that the discs contained ESI that had been converted to TIFF images, not scanned copies of paper documents.”  Anyone with even one-tenth the knowledge that Daryl has can spot at a glance the difference between TIFF images created directly from ESI using an e-discovery processing program and TIFF images created from scanned paper.  It’s the difference between high-definition and regular TV. 


At the conclusion of the hearing on June 25, 2008, Judge Spaulding found that the plaintiff, through its 10017163~Courtroom-Scene-Posterscounsel “deliberately manipulated the electronically stored information in such a way as to withhold from the defendants the information that had been requested, specifically metadata,” and further found that the problems with the ESI production were caused by the plaintiff and its agents, and therefore “they will be the ones to bear the burden of whatever cost it takes to get” the ESI produced in a usable format.  They were given until July 11, 2008 to produce native files with metadata or equivalent.  The plaintiff appealed to the District Judge, but to no avail. 

That wasn’t the end of it.  In early October 2008 Judge Spaulding – apparently on her own motion — issued two notices:  one re-opening the sanctions hearing, and the other directed at Reed Smith and the individual attorneys to afford them “an opportunity to file a supplemental response to the sanctions motion addressing why sanctions should not be imposed against any or all of them as the attorney(s) responsible for the allegedly sanctionable conduct.” 

No lawyer wants to be on the receiving end of a notice like that. 

Not a good day at the office

Not a good day at the office

The re-opened hearing took place on December 8, 2008.  Here it came out that after the defendant’s objection to the form in which it had received production, the parties had discussions between mid-May and mid-June 2008.  At page 14, the judge found that during those discussions, one of the Reed Smith attorneys, Partner B, had concocted a story about the process that B&G and AKO used to gather the discoverable documents. [Partner B] explained that  ‘B&G printed the documents from B&G’s electronic systems. B&G sent the printed documents to Anderson Kill. Anderson Kill scanned the documents to create TIFF images of them . . . , from which production was then made…’ ”

This convoluted process, if it was true, would explain why the production consisted only of TIFF images with no searchable text or meta-data.  Back in the mid-1990’s, this was actually the way electronically stored information was processed to get it into reviewable form: open the native files in their native application or in some print utility software, print to paper, scan the paper to TIFF images. 

Early e-discovery processing was like a "Rube Goldberg" contraption.  Except a lot more expensive.

Early e-discovery processing was like a "Rube Goldberg" contraption. Except a lot more expensive.

However, if you wanted them to be in any way useful for a review, you’d also OCR the text and have bibliographic coders capture the date, from, to, title, etc.  None of that was done here because it didn’t have to be, because the electronic data hadn’t been printed and scanned.  While the plaintiff’s case was still being handled by the previous law firm in 2007 it had in truth actually been processed in a perfectly normal up-to-date way:  using one of the now-numerous e-discovery conversion programs, in this case, Extractiva.  It was then loaded into an Introspect database, also quite normal and acceptable for 2007.  The Extractiva program created the TIFFs, populated the fields for date, from, to, title, etc., and captured the full text.    

Technology like Extractiva has been around since the late 1990’s.  Any law firm authorizing e-discovery the old inefficient print-then-scan way by the middle of this decade would be guilty of malpractice.  Anderson Kill didn’t do that in 2007, and had Reed Smith been in charge of the case then, there’s no way they would have done it either.  We’re talking about a couple of top-tier law firms here.

In any event, somehow the data produced to the defendants on April 30th consisted of the nice-looking TIFF images that would result from using a tool like Extractiva, but apart from a mere load file delineating the start and stop of each document, the images were accompanied by none of the searchable data that would make them useable.  How this happened is unclear; normally, exporting a production set from a program like Introspect requires conscious human intervention to select which fields of data get exported and which do not.  To the credit of the two partners, at least the associates and other lower-rung employees didn’t end up taking the fall for this.

The judge continued, at page 15: 

lawyerwithlaptoponhead_edited“In creating this false tale, [Partner B] ignored numerous facts known or readily available to him about the actual process that was used to collect ESI and produce it to Lexington.”

Among those numerous facts:   “Reed Smith attorneys had access to the Introspect database before and after AKO transferred it to Reed Smith. If he had reviewed the Introspect database, [Partner B] would have seen that it contained ESI metadata. Finally, [Partner B] could simply have contacted AKO to learn how the information was gathered. …   The false explanation [Partner B] gave regarding how ESI had been collected was based, at best, on willful blindness which unreasonably prolonged and multiplied the proceedings regarding the ESI discovery dispute.” 

At the December hearing, Partner B testified that he had erroneously assumed the plaintiff’s electronic data had been printed and scanned to TIFF because he had heard about summer interns standing in front of scanners, and he incorrectly leaped to this conclusion.  (There had been a paper-source component that would explain the scanning activity.) 

The result:  Reed Smith and the individual attorneys were ordered to pay the sanctions themselves, and the judge specifically excused their client B&G from any liability. 


You can start by asking the computer guy

You can start by asking the computer guy

I don’t wish to appear either too critical nor too defensive of Reed Smith and these two attorneys when I say this, but there’s a bit of a “perfect storm” element to this.  Reed Smith took this case over from another firm (AKO) just as discovery was heating up but after the client’s electronic data had been collected and processed, so they didn’t have their own institutional knowledge of how this had been done.  Admittedly, the lead partner was the same person, but let’s face it, lead partners on big cases usually don’t work on e-discovery at any level of detail.  Compounding this problem, the relationship with the former law firm appears to have been frosty, though when pressed, the Reed Smith attorneys admitted that AKO had not been uncooperative or obstructive. 

Still, it’s easy to envision Reed Smith not getting into this kind of trouble if they had managed this case from the start.  It doesn’t excuse what happened, but it does inject a certain “there but for the grace of God go I” element.  The change in law firms introduced a possible point of failure in communication and understanding that requires extra effort to overcome.  If you’re one of these lawyers, and you think you know the answer to how the ESI was processed, and don’t relish having to go back to the previous law firm to find out for sure, it’s easy to see how sticking with what you think you know would feel more comfortable; it also might look like the path of least resistance. 

On the other hand, the mere fact that the ESI was in an Introspect database necessarily implies that there’s something more than mere TIFF images there.  I know that, lots of litigators know that. However, lots of litigators don’t know this – but by now they should. 

What are the lessons to be learned from this?

One.  If you don’t know, ask.  In a large firm like Reed Smith, that doesn’t even require asking someone external who might charge fees.  This firm has a group of practice management and litigation support personnel who know this stuff cold.  If you’re in a firm that doesn’t have these internal resources, there are plenty of consultants out there to help you.

Two. If electronic discovery is not your forté, whatever you think you know may not be correct.  On top of which, you don’t know what you don’t know.  You may vaguely recall having heard that electronic data was made ready for review and production by printing it and then scanning it.  If your memory is anything like mine, you might think you heard this two years ago when it was really twelve years ago.  Technology changes dramatically in a matter of months, not years. 

Three.  Never make an assertion or representation to the court – or to opposing counsel – that turns out not to be true if you do not have a solid good faith reason for believing it to be true at the time you assert it.  Suppositions and assumptions are unacceptable. 

Four.  A little knowledge is a dangerous thing.  Too many lawyers only have a little knowledge.  This episode shows how all too many lawyers know just enough about electronic discovery, in snippets and disconnected fragments, to be dangerous – mostly to themselves.  What was the purpose of going through these gyrations of trying to produce images stripped of all metadata anyway?   There’s an urban myth among lawyers that if they produce native files with metadata, the other side’s going to find some nugget in there – whatever “there” is —  that’s going to set off a whole string of calamities starting with losing the case, then losing the client, then losing a malpractice lawsuit, then followed by hail, frogs, locusts, and so on.

The defendant had specified in its RFP that it wanted the plaintiff to produce “such information, without deletion or alteration of meta-data, in its native form.”  If you receive an RFP phrased like this and you’ve got a concern about it, find out from people who know what these words mean

  • what are legitimate concerns,
  • what are unfounded concerns,
  • what might be possible resolutions,

and then work it out in the meet and confer.  There’s the kind of metadata that is essential for meaningful review and production of data.  And there’s the kind of metadata that simply adds to the information overload that you don’t want to have to review prior to production and the other side doesn’t really want to have to look at if you do produce it to them. 

Can we not get over this metadata bogeyman, already? 

Some things aren't as frightening as they first seem

Some things aren't as frightening as they first seem

Discovery disputes are bad enough.  Discovery disputes arising from fear of the unknown are worse.  They’re worse because they’re totally avoidable with some real education, with some help from resources either inside the law firm or from the consulting community, and with some reasonable discussions with the other side.

Five.  About the words “some real education” just mentioned.  One-hour lunchtime CLE’s obviously haven’t gotten the job done.   Judge Shira Scheindlin, of Zubulake fame, has been quoted that e-discovery now just means discovery.  She exaggerates, though not by much, to make a serious point.  As Browning Marean, Tom O’Connor, and Ralph Losey discussed in Ralph’s recent “New Tonight Show” post on his blog (here), discovery of written material is now almost entirely e-discovery,  unless you’re litigating the Louisiana Purchase.   For a more detailed discussion of the ethical implications of e-discovery competence or lack thereof, and the need for much more lawyer education and training, go to these two other posts on Ralph’s blog, here and here.

Closing thought.  Three years ago, another judge from the same District Court got us laughing from coast to coast with his creative resolution to another discovery dispute.  He ordered counsel to settle it by “Rock, Paper, Scissors” on the steps of the federal courthouse in Tampa[iii]. 

That case: funny.  This case: not so funny.





[i] Discussed in my article rocks-and-hard-places-march-2008.

[ii] Craig Ball, The Train’s About to Depart, Law Technology News, June 2006, at 44.

[iii]  Avista Management v. Wausau, 05-cv-1430, June 6, 2006, Presnell, USDCJ.  Copy here.