At first sight, a ruling made in Delaware last week appears to predict the end of e-Discovery. A closer reading reveals a terminological confusion and the common-sense conclusion that clients will find a different way of resolving their disputes if lawyers and courts do not speed up the process of getting to judgment. It applies in the UK as much as in the US
One of the difficulties faced by those of us interested in the courts’ role in managing e-Disclosure is the lack of reported outcomes of Case Management Conferences. We know from his speeches that Master Whitaker, the most active proponent of judicial intervention in this area, feels somewhat alone. We know that there are few new players exchanging their Disclosure information electronically. But CMCs go on behind closed doors as, generally, do the costs arguments afterwards.
They do things differently in the US, we think, and so they do. Very differently, to judge from a ruling made last week at a Scheduling Conference in the US District Court for the District of Delaware. Regular readers will know that I am an advocate of pragmatic approaches (within the Rules, of course) for finding the point where speed, accuracy and cost converge in the interests of getting a case heard justly. The Delaware judge has pragmatism. It took some re-reading, however, for me to appreciate it.
The first part of the transcript involves a standard argument about timing. One counsel says there is lots of work to do to dig out documents in Europe and wants until March to do it. His opponent, very politely, says that five months have already gone by and he is damned if he is going to agree to sit around with the litigation on hold for another five months whilst the other side junkets in Europe, not knowing if he may then have to go through the Hague Convention for “depositions, documents or what have you”. He thinks the documents should be dealt with by the end of November. He had offered a compromise date of the end of the year but that had been rejected.
Some low rumbles emerge from the Bench about the time and expense of this kind of litigation. The judge suggests a way of focusing minds:
“..here is what I can do. I can set a firm never-going-to-go-away trial date in the District. And then let you have all the aggravation of arguing with each other about getting to that trial date. Because if I set the trial date I won’t hear any excuses about not getting to it except discovery abuses. Someone not playing fairly and then they will get hurt very badly in the process”.
Lengthy discussion follows about dates. If some of the digressions look a bit odd to English eyes, just be thankful that your every extempore word at a CMC is not noted for posterity and broadcast round the world. The date for Discovery is fixed for January 4 with the judicial comment “that will tie you up on New Year’s Eve”.
A conclusion is reached on other dates, and the judge asks if there is anything else the plaintiffs want to talk about. As it happens, there is. The lady counsel has an issue which “pertains to E discovery” (the spelling so appears throughout the transcript but, as we will see, it is the definition rather than the spelling which caused me confusion. I will stick hereafter to the conventional spelling).
Her clients have been asked to preserve what their opponents refer to as “backup tapes” but which her clients call “disaster recovery tapes”. These tapes are expensive and are recycled frequently. They are “for disaster recovery only, not for archival purposes or wholesale broad preservation purposes”. She makes it clear that her clients understand the Federal Rules, the implications of the Zubulake case and the local default rules. She can produce the clients’ preservation hold and document preservation notice to show that what they have done complied with their obligations. All in all, she states pretty fairly what is familiar territory in most US courts.
To say that the judge accepted her argument seriously understates his reaction.
“They don’t really want that, theyr’e just kidding with you. Do you think they are serious?…They are just kidding with you. Aren’t you?”
Her unfortunate opponent says that he did not know this point would come up today. Everyone else is agreeing not to destroy their backup tapes.
“That’s nice of them” says the judge, sarcastically. The proponent of tape preservation ploughs on, until he is interrupted mid-sentence.
It would appear that His Honour is no great enthusiast for e-Discovery and he has found support for this in an article he read recently. A judge, he says, writes:
“that this whole e-Discovery thing won’t even be talked about in five years. And we as trial judges spend too much time being concerned about the premise that there is something in it. There isn’t, trust me. They destroyed it already.
If they had a mind to do that its gone. And we are spending a lot of attorney time and money and court energy worrying about e-Discovery. Unless you think …you’re dealing with a litigant that has some track record of fraud; I’m not talking about the attorneys.
For instance, if you came in here dealing with an offshore bank, I’m going to start listening more carefully. You’re dealing with legitimate companies here and they’re doing the best they can. There is nothing in those tapes anyway. You’re not going to get a lot in e-Discovery. There is no smoking guns…..
You can’t have backup tapes….I’m telling every case that. And I am telling everyone to ratchet down on e-Discovery…”.
One of the counsel sees where the wind is blowing and says he doesn’t disagree about e-Discovery – “It’s tremendously expensive, by the way”, he adds. The judge says he is stunned when he asks for the numbers.
The Court: You could be a victim one day
Counsel: I am. I have lots of cases
The Court: Bring them here.
It adds a whole new dimension to forum-shopping doesn’t it, when you find a court apparently advertising itself on the basis that technology gets short shrift here? If I had a case where the evidence which damned me lay on a tape, I would be off to Delaware like a shot.
Or so I thought on my first reading of the passages from which the extracts above come. I couldn’t help feeling, however, that I must be missing something. I was with the judge as to these particular backup tapes, though I did not share his apparently automatic contempt for backup tapes in general as a source of disclosable information. But I was pushed to see how e-Discovery as a whole was going to disappear within five years – tape, possibly, but not all electronic sources of information. What technological shift is coming which will make that obsolete? Only a shift back to paper, which seems unlikely.
Reading and re-reading the relevant passages, I come to the conclusion that this judge (and presumably those who appear before him), consider “e-Discovery” to have a narrower meaning than most of their compatriots. The whole thing only makes sense if you treat “e-Discovery” as a term equivalent to “delving through backup tapes in search of documents omitted on Discovery” and not, as most of us use it, to cover the electronic production of sources which are electronic in origin.
Re-reading the passages in this light, it begins to make more sense. The key sentence, I think is:
“You’re dealing with legitimate companies here and they are doing the best they can”.
This is consistent with a question I ask when about to start working with data supplied by other parties. “Is there any reason to expect underhand behaviour on the part of the company which provided this data or its lawyers?”. The answer, at least in the company I keep, is usually “No”, and any errors or omissions which are found are usually attributable to cockup rather than conspiracy.
It is not the imminent death of e-Discovery which the judge is predicting, as appears at first sight, but a brake on the attitude which treats all opponents in civil disputes as fraudsters, an attitude which contributes much to the extraordinary degree of conflict – and consequent cost – which arises in some US litigation. It is not the only factor. The existence of large cash punishments for spoliation becomes a weapon in itself, an opportunity to crucify opponents for disclosure defects external to the merits of the claim or defence.
The judge is really saying this: by all means be alert for the possibility of dishonest behaviour in the conduct of litigation, and let me know if you have cause to believe that there is any. Absent that cause, don’t ask this court to impose burdens on parties which are commercially crippling but which do not add to the evidence to be considered.
The next passage is really an address to all litigation lawyers:
“You, not me, are going to lose these cases in some measure if we don’t get better at processing them cost-effectively and time-effectively….So I’m committing myself more to the job of moving the case to a judgment so that [the Federal Court] can get you to a final decision in the case which is fine. E-Discovery plays right into that. No backup tapes”
In other words, parties will find some other ways of resolving their differences if you, the lawyers, and we, the courts, do not find a better way of handling them. I am with the majority as to the definition of “e-Discovery”, but I agree with the judge as to his pragmatic approach to getting the case heard cost-effectively and time-effectively.
That does not, of course, mean that you do not expect parties to give Discovery of backup tapes. The judge’s blanket assertions that “there is nothing in them anyway” and the idea that he is “telling every case” that they should not expect him to order discovery of backup tapes is wrong by any standard – Mark Dingle of Simmons & Simmons reminds me that that the killer emails in Zubulake existed only on backup tapes. That does not undermine the judge’s acceptance of what was said to him in this case, nor the general proposition that we need to get better at processing cases cost-effectively and time-effectively.
That includes better technology for digging through backups. But it also includes making judgements as to how much is really needed to be sure that everything relevant is out in the open. That in turn requires a closer examination by the court of the sources which are available, if necessary by IT department evidence given at an early stage.
The problem here, I suspect, was one of terminology. A court which appears sweepingly to dismiss the whole concept of e-Disclosure did not perhaps intend to lump all types of backup tape under one generalised heading.
If you want help with a pragmatic approach to giving, or receiving Disclosure documents, please contact me.