My reporting of the excellent Carmel Valley eDiscovery Retreat has been rather dominated by my post Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat. Frankly, if that had been the only session it would have justified my 11,000 mile round trip. There was plenty more, however, both on the agenda and in the discussions at this pleasant and relaxed venue.

The judicial panels were excellent. At first sight, it seems rather odd to have two judicial panels on successive days with the same moderator and participants. The second one was the only event on Day 3, not an easy time to attract an audience at a venue which offered many alternative attractions. It was a tribute to the panel that the second show attracted a good audience.

Diane Barry was the moderator and the panel comprised US Magistrate Judge Andrew Peck, US Magistrate Judge Elizabeth Laporte, Martin Quinn from JAMS and Judge Hon. James L. Smith (Ret.), also from JAMS.  JAMS, for those who don’t know (I did not) is the largest private alternative dispute resolution (ADR) provider in the world. You have to work quite hard to find that JAMS is an acronym for Judicial Arbitration and Mediation Services, Inc.

They covered a lot of ground over the two sessions, pursuing interesting lines as they came up rather than sticking to a pre-structured agenda. I propose simply to pull out sentences which catch my eye from my notes, without necessarily attributing them to a particular person.

The system is not going to function without cooperation and transparency about the best and cheapest sources of data, and the identity of the key custodians. The potential sanctions for failing to hold a meaningful meet and confer can be very high.

The meet and confer is not simply a one-off event – the parties need to keep talking throughout the discovery process.

It is enormously helpful to involve the knowledgeable in-house people, whether lawyers, IT people or a retained expert. and to bring them to court for case conferences. This “bring a geek to court” idea often results in meaningful discussions taking place over the heads of the lawyers.

One has to watch, however, for the IT “can do” attitude and make sure that they do not promise more than they can deliver without bringing the company to halt or spending $5 million doing it

There is often an inverse relationship between the level of knowledge and the degree of obstreperousness.

Sometimes juniors appear in court who do know what they are talking about but are terrified that they might give away too much.

Remember that judges grew up in the days when one was required (and when it was feasible) to produce everything relevant

If there is a “bad e-mail”, then tell the judge about it and do not wait for the other side to tell him about it.

It is malpractice not to ask for an order under Federal Rule of Evidence 502 and fail to to turn a clawback agreement into a court order.

FRE 502d does not require you to show there was no inadvertence – that is, inadvertent waiver is not a waiver. You may have let the genie out of the bag, but you can get documents back

Using advanced analytical software is reasonable – no keywords will find e-mails of the kind which read “I spoke to you-know-who about you-know-what”.

The standard of sanctions varies circuit by circuit. Judge Peck reminded us that US Magistrate Judge Paul Grimm’s Victor Stanley 2 sets out the requirements in each circuit – “all Grimm’s opinions are great technical tools”

One has to balance the level of misconduct against the presumed value to one side or the other of missing documents.

You are sometimes looking for gaps in e-mail conversations – “don’t mail me any more about this”.

If you find wrong-doing on your own side then come to the court with a solution – you will look much better on a sanctions motion if you bring your own solution to solving a problem which you have created

Courts must give sanctions on occasions – we have “got to have police on the block” in Judge Laporte’s words

The role of the judge has increased in recent years, with judges now having an independent interest in deciding what needs to be done for the court and for the profession

There are more cases denying sanctions than granting them

Transparency brings arguments about disclosing work product. The costs of a formal deposition of a witness about discovery under FRCP 30 (b) (6) can be extremely high, and it is not always worth running purely technical arguments about work-product

Corporations must be knowledgeable and informed – the Fannie Mae litigation showed an extreme example of the adverse consequences of uninformed agreement.

The closing panel was dominated by discussion about possible rule changes relating to preservation, with the prime focus on whether there should be a closer definition of the trigger in place of the “reasonably foreseeable” common law trigger. What should be the scope of a written notice or complaint? The subject matter, time-frame, sources, form of preservation, duration of hold and the consequences of non-compliance all raised issues.

There are multiple versions in existence of possible new rules; any rule change is two years away at least; there are those who argue that a change is premature and unnecessary; there is a fundamental issue in that the federal rules of civil procedure take effect only when litigation begins, so questions arise as to who has jurisdiction to make any finding about the scope and costs of preservation when no litigation actually ensues.

There are no easy answers here beyond the obvious recommendation that life would be much simpler if those who anticipated litigation had a proper document preservation policy in place. There is much to be said for getting on the phone and trying to agree a sensible position, documenting the discussions and working to ensure that whatever position is taken will look reasonable in any future dispute. Martin Quinn expressed a strong preference for “someone who comes in with a proposed solution not someone who just comes in and whines”. As always in these discussions, US Magistrate Judge Paul Grimm’s opinion in Mancia was recommended as a guide to appropriate conduct.

Some good points came out of a panel involving Herb Roitblat of OrcaTec and Greg Buckles and Jason Velasco of eDiscovery Journal. No one ever argues about the use of technology, just the scope of search etc. For many people, the retrospective validation of processes amounts to “jumping around in it for 3 to 5 minutes”. Should we be concerned about evaluating the security of the receiving party – we take great care of our clients’ documents and then pass them to someone of whose security mechanisms we know nothing. One of Judge Peck’s many useful interventions from the floor was to say that he would find it hard to refuse production unless there really was a security or confidentiality point.

Mary Mack of ZyLAB discussed the management of legal holds in enterprise repositories with Barry Murphy of eDiscovery Journal. Browning Marean of DLA Piper US took us briskly through project management issues; George Socha and others talked about ethical issues.

As always, I did not make it to all the sessions, preferring to engage in random conversations as the opportunity arose. One of those was with Christian Lawrence of SFL Data, an Englishman who went to school in Oxford. His e-mail afterwards said of this that it was “I think the first and potentially last time I meet another person from Oxford deep in the eDiscovery industry”.

We simply don’t have conferences like this in the UK. There is, of course, much more to discuss in the US and a much higher level of debate. Much of what happens at these conferences is, as Judge Peck put it, “preaching to the choir”, and we need to broaden the audiences to bring in a wider range of those in companies and law firms whose businesses – and whose personal career development – are going to be affected, positively or adversely by the way they handle discovery. An event like this has the potential to attract this wider audience and I am very pleased to know that provisional plans are made to hold it again next year. A big hand, once more, for Chris La Cour for putting on a first time show with such flair, and a big hand also for those who agreed to sponsor an event which had no past record to point to.

There are some photographs of the event here.

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