There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.
The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:
“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
Substitute “CPR” for the reference to the Federal Rules, and replace the US Rule 1 with our own Rule 1 – the over-riding objective – and you have exactly what UK judges could be (and in about three cases actually are), saying with regard to electronic documents. You begin to see why I asked IQPC to invite Judge Facciola, and his equally thoughtful and forthright colleague US Magistrate Judge Paul Grimm, to their London conference on 21/22 May. More on that anon.
Neil Aresty also made reference to Judge Facciola’s January attack on the White House over its missing e-mails, made necessary by the imminent departure from the White House of the whole administration complete, presumably, with such e-mails as have not already been destroyed accidently (or, more probably, not). That too has UK resonance, as we watch the House of Commons ducking and diving in its attempts to avoid disclosure of what our elected rulers spend on tarting up their houses (or perhaps on just tarts – we shall see) at our expense. It all helps to remind us why our forebears fought so hard for the separation of executive and judicial powers.
I say this much by way of introduction to show my UK readers that Judge Facciola may speak like the Brooklyn boy he is proud to be, but that what he says resonates instantly in British courts. There is a default resistance here to all things American amongst UK civil lawyers, attributable to an ignorance of US procedure, and of recent US case law, which exceeds even their ignorance of their own procedure. I speak as one who regularly asks gatherings of litigation lawyers if they know of the Practice Direction to Part 31 CPR. A year older than the 2006 Amendments to the Federal Rules of Civil Procedure, the PD governs the co-operative and proportionate handling of disclosure. Disclosure is the main expense which puts clients off litigation. It seems worth a peek at the rules which govern it.
American lawyers may know the rules, or at least that they exist. Many of them also have some understanding of the technology which creates the discovery problem and which, properly used, can manage it and do so cost-effectively. The message from Judge Facciola is that many US lawyers do not know as much as they ought to know. The key concepts were competence and co-operation.
Judge Facciola said that many lawyers and judges had lost the ability to step back and look ahead. We are accumulating all this information and giving insufficient thought as to how we will handle it. If you screw up when sailing, he said, you know about it immediately and without right of appeal. The incompetence which he saw about him would have more long-term effects. It was, he said, a stubborn wilfulness rather than pure ignorance. Information technology was seen by many lawyers as a kind of infection which caused cases to die. They hoped to find a kindred spirit on the other side. Instead of matching discovery to what is at stake, such lawyers make a deal to handle their ignorance with the connivance of the opponent. Such lawyers, he said, do not take the opportunities to learn and they come unprepared to hearings.
Under-promising and over-promising lawyers were, he said, as bad as each other. “It is impossible” or “it can be done by the end of the week” are equally pernicious if they are not founded in an informed understanding of what is involved. Under-promising leads to a series of representations to the judge and ends in sanctions. Over-promising ends in Fannie Mae (see Fannnie Mae – be careful what you agree to with e-discovery orders if you are unfamiliar with this particular example of a lawyer winging it through a subject he did not understand).
E-discovery could not be ignored as a component in both civil and criminal cases, but Judge Facciola said that many of those who appeared before him were simply not equipped to deal with it. The worst example, he said, was the lawyer who admitted that he did not understand “all this computer stuff”. His client faced pornography charges, with perhaps ten years in prison facing him. You sometimes need extreme examples to make a point.
This type of ignorance has wider implications than the duty of a lawyer to his client to be fit to practice in the type of litigation for which he is retained. We do not all, fortunately, get the chance to drop our clients into $6 million worth of disclosure costs, still less to defend them on a serious criminal charge whose subject-matter is a closed book to us. If you practice in document-heavy litigation then you ought to know the basics of the relevant technology or get the help of someone who does.
The wider implications which Judge Facciola moved on to were twofold – the ethical implications for a lawyer who finds himself in a position to take advantage of his opponent’s ignorance, and the burden on the court when dealing with parties whose skill was asymmetric. The former point generates divided views – my own position is the perhaps harsh one that, in an adversarial system, a lawyer is entitled (and bound by his duty to his client) to exploit his opponent’s lack of skill or knowledge, and that a few more self-induced disasters like Fannie Mae (Hedrich v Standard Bank is the current UK example) might persuade people to give the subject the attention it deserves – and might induce professional indemnity insurers to take a belated interest as well. Judge Facciola made reference in this context to Jason Baron of the National Archives and Records Administration who has the knack of identifying ethical dilemmas of this kind in which the duty to your own client, the duty to the court and wider, almost moral, issues intermingle.
The problem for the court comes in two parts. One is the time taken up in dealing with parties who do not understand what they are doing. Judge Facciola said that if it was hard to proceed where both parties were incompetent, it was much harder if only one of them is. Sometimes, he said, having people like that in front of you is like watching a clumsy ballerina. My scribbled notes say at this point “…someone right out of the window” but I cannot think what the judge could have said about the advocates before him which might make defenestration a relevant topic. The implication is perhaps that if you do not have e-discovery skills when you appear before Judge Facciola, it might be an idea to take along four strong men with a blanket to stand in the flower bed below the courtroom.
Much the same principles apply to attending a meet and confer (as to the skills, I mean, not the blanket). The meet and confer is valueless, Judge Facciola said, if one of the parties does not know what he is doing. There is an obligation to come well prepared and ready to bargain – the rules only come into it where the parties have not reached an agreement. Most of us, given the choice between making a deal with co-equal bargaining power or taking pot luck with the judge would prefer the chance to shape things as we want them. Nor is there anything peculiarly American about this – we in the UK may not have the meet and confer in formal terms, but we do an obligation to discuss electronic sources and to take difficulties or disagreements to the judge. If your particular difficulty is that you don’t have a clue, then you can expect to come off worst in the ensuing argument.
Judge Facciola observed that the obligation to co-operate – including having the skill and knowledge to be able to do so advisedly – has teeth in the form of the Sedona Conference Cooperation Proclamation the reading of which, he said, has been made compulsory in some pre-trial orders in Illinois and which had been endorsed by many judges.
Reverting to the subject of judicial resources, Judge Facciola said that there had been a change in the function of judges since the Federal Rules were adopted in 1938. E-discovery had increased significantly the amount of time spent by a judge in active pre-trial involvement. 70% to 80% of his time was spent trying to settle disputes. A District Judge had recently appointed two Magistrate Judges to deal with disclosure in a case. Judges, some of them anyway, were taking an increasingly hands-on role. “What is the problem?”, they ask, “What is the fix?”.
This is all music to my ears, as an advocate of greater judicial involvement in moving cases along. The appointment of judges purely to deal with discovery issues fits with my wish that we had specialists (judges or the equivalent of the US special masters) to take particularly burdensome discovery disputes on one side and deal with them (I will be writing about this, and the arguments it generates, shortly). The “What’s the problem? What’s the fix?” approach lies squarely within the discretionary and management powers given to judges by the CPR. We have it, but we do not have it consistently, and since parties cannot choose their judge they cannot conduct their discussions with any confidence that they can predict the outcome.
Judge Facciola accepted that his approach to discovery disputes was not universally popular. He did not himself think it too bad that parties felt they must engage competent attorneys before showing up before himself or Judge Grimm in Maryland. The two of them could, he said, cope with people asking “What are they going to screw up this time?” He was, he says, the best thing to happen to IT vendors since tee-shirts.
The first part of that is reminiscent of the law student of my own generation who, it was said, had written to the Lord Chancellor asking him to stop Lord Denning making any new law until she had taken her finals. It was indeed rather hard to keep up as Tom Denning took full advantage of his position as Master of the Rolls to do what was right to achieve justice (his signature is on the Practising Certificate on the wall behind me and, I like to think, is subliminally influential). The pronouncements of Grimm and Facciola may appear sometimes to be unpredictable (the origin of the “what are they going to screw up this time?” question) but there is a common thread which runs through them which is to do with having knowledge and skill commensurate with the complexity and importance of the task. My enthusiasm for case law which pushes the boundaries may seem incompatible with what I said above about the need for consistency. What is consistent about the judgments is the recurring emphasis on the obligation to know what you are doing and on co-operation.
As to the vendors, their gratitude should not derive from the mere number of systems sold as armaments in the disclosure wars. Judicial pronouncements which emphasise the need for a skilled yet proportionate approach to discovery (O’Keefe from Facciola, Victor Stanley from Grimm to take but two examples) have been the driver for new generations of software tools, notably the newer early case assessment applications. If their availability in turn drives up the standard expected of the lawyers then the blame does not lie either with the judges or with the software vendors – we make all this data and we need good tools and good lawyers to handle it.
“My fellow Americans! The time for change is now. This is our time” The by now familiar quotation moved us on to the next stage in Judge Facciola’s speech which was education. The formal qualification for appearing in his court (or, indeed, for sitting on the bench), he said, was that you had passed the bar exams, had a pulse and were perpendicular to the floor. He himself was last tested in 1969. His son was always taking courses and refreshing his various qualifications. Technical people at RSA or Microsoft had constant training. Why should lawyers be exempt? There were, he said, fifty bar associations; the question was “is the bar high enough?”
Judges were not exempt, he said, from this skills appraisal. It was likely that a large number of senior judicial appointments would be made under Obama – the unexpressed but implied hope was that the bench may see some younger recruits. The vetting process for potential judges should include his or her capacity to deal with important areas of practice as well as law. Nothing in his own experience, he said, had suggested the course which he would take.
It is relevant to observe at this point not only that English judges are unlikely to have had hands-on experience at handling electronic disclosure in their practice, but that they have no training in it on their appointment. The average age of appointments is rising – this is not a bad thing per se (says he, looking again at the faded print of his practising certificate) but new appointees who look as if they last saw a computer at Bletchley Park in 1943 do not inspire hope that the problems of electronic disclosure will be gripped anytime soon.
Judge Facciola moved next to the disproportion which exists between government and private resources. The government lawyers were often outgunned and outmanned by the other side. Some kind of scholarship was needed, he said, to bring young talent into the government service.
Sticking with recruitment issues, he said that discovery was a place where fun goes to die – all that education and training applied to looking through slack space for evidence. My notes do not record that he said anything more positive to alleviate this, so I will fill the gap with my own view. I spent much of my early years as a solicitor taking cardboard folders out of boxes, reading paper documents and dictating a list for an equally bored secretary to type up. It was the price paid, I reckoned, for not having to be a property lawyer, or a commercial lawyer, or one who dealt in death or divorce. The rest was pretty good fun, but discovery (as we still called it then) was dire. There are still people giving disclosure that way now. What is more, they are taking electronic documents and turning them into paper in order to recreate the experience of document review as it was in the 1980s – which was itself not very different from the way it was done in the 1880s.
One of the many mysteries about this business is why the Google generation has not persuaded its seniors to flock to the modern review applications as a recruitment tool quite apart from the business and client benefits. Sure, recruitment, like everything else, ain’t what it used to be, but if I were a young lawyer I would be future-proofing my career by becoming the best in the office at extracting maximum evidential gold from the dross of discoverable material using technology which (in a phrase I use often) is near-magical in its functionality.
There is a thread here connecting those developing judgments (whether or not you characterise them as “what are Grimm and Facciola going to screw up today?”) and the people working at the thinking (as opposed to the purely mechanical) end of e-discovery. It is a bit like being a young lawyer when Lord Denning was in his late prime – that sense that the law was both developing to meet changed times and keeping in touch with its common law roots.
When, as a newly qualified lawyer, I was tossing up between litigation and an attractive offer from my firm’s commercial department, what swung it for litigation was the possibility of being involved in something which changed things – not just a corner of the law but the role of the law in society. The last decade has not been good on the latter front in either the US or the UK. US litigation has grown in uncontrolled fashion. In the UK, we have all but killed it in pursuit of the perceived ideal of alternative dispute resolution achieved by a deliberate (now that we look back on it) policy to drive parties out of the courts by making it too complex and too expensive to litigate.
Judge Facciola echoed in this speech something I have heard him say before – that we risk losing the civil courts if we do not use them properly. Part of the problem is mindless cost-cutting by governments which mouth platitudes about access to justice whilst reducing staff and raising fees. Part of it is the “stubborn wilfulness” to which Facciola referred at the beginning of his speech which allows lawyers to ignore technology whilst purporting to advise in a technological world. Part of the blame lies with judges who let them get away with it.
Facciola’s speeches manage to convey two apparently contradictory positions. He is fearful for the role of the courts in society and critical of those – in government, on the bench and in practice – whose standards contribute to their decline. At the same time, he is excited about the opportunities to rescue civil justice by raising the level of debate and imposing through his rulings the high standards whose absence he deplores.
I hear him speak at technology conferences, and the thrust is inevitably towards electronic discovery, the subject which he has made his own. He makes it clear even in that context that there are wider issues here. He is not pushing, he said, just for some kind of certification in electronic discovery but for a wider grounding in civil procedure. He did not mean merely a better knowledge of the rules (helpful though that would be) but a more acute perception of their place in opening the door to justice.
Those of us who advocate the same in the UK are similarly careful to make it clear that we are not merely urging exploitation of the rules for tactical purposes or for their own sake, nor suggesting that electronic disclosure is right for every case. What is right is that those who practice litigation, and those who are charged with managing it, should know what the rules are and should understand enough about the problems which technology has brought, and about the solutions, to be able to decide what is the most proportionate route to justice.
You can look at this at a high level and talk of the courts’ role in society. You can lower the focus to individual cases and to the decisions which judges make about them. Judge Facciola has an enviable position which allows him to do both. He does it well, and what he says of the US system has much of value for us in the UK.
There was more useful stuff in the questions and answers which followed, to which I will return. I end by repeating part of the quotation from Judge Facciola’s Opinion in Covad v Revonet:
“I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules ‘should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.’”