Trust But Verify — What E-discovery should be
If you ask an opposing party about the details of their document collection; the custodians interviewed; the keywords searched; or the culling approaches used; you are likely to get one response, a quickly erected brick wall.
In Cooperation and Litigation: Thoughts on the American Experience (2013), Richard Marcus writes:
“I grew up in the age of Rambo litigation. But from what I have read since leaving practice for teaching more than thirty years ago, litigators (and other American lawyers) may well be more adversarial and less cooperative than ever. Some suggest that this tendency results in part from client domination of lawyers. Far from serving as the learned counselors that Dean Kronman applauded as representative of a lost golden era of lawyering …. the client does not want to hire a ‘cooperator,’ but rather a bulldog.”
One would think that in an era in which technology thrives, lawyers could put behind them their pettifogging adversarial behavior and not fight over things in discovery simply because they feel they can.
Defense lawyers complain their adversaries want to take advantage of cooperation and plaintiffs lawyers sometimes have trouble finding a hint of cooperation in most of the discovery process.
Take for example an article I recently read, written by two young lawyers who cited the case of Freedman v. Weatherford Int’l, No. 12 Civ. 2121, 2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014) as a great license to:
“When ‘discovery on discovery’ is sought in the form of a 30(b)(6) deposition, requests pertaining to preservation and collection efforts, or even retention policies, the receiving party should strongly consider objecting to such requests. This type of discovery is not related to the claims or issues in the case and, absent evidence of spoliation, is not within the proper scope of discovery.”
Why? Because they feel they can; but not necessarily because it fairly advances the litigation.
So what does the rule to which these authors refer really say? Rule 26 (b)(1) actually sets forth:
(b) Discovery Scope and Limits.
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General.
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).
The wording of the rule reaches out and encourages broader cooperation in at least the area of disclosure and should particularly apply that way in today’s complex e-discovery world. The knee-jerk reaction; however, is to throw up the proverbial brick wall and dig in to oppose the request.
Perhaps Craig Ball put it best:
“Whether a court smiles on a methodology may not be the best way to conclude it’s the better mousetrap. Keyword search and linear review enjoy de facto court approval; yet both are deeply flawed and brutally inefficient. The imprimatur that matters most is “opponent approved.” Motion practice and false starts are expensive. The most cost-effective method is one the other side accepts without a fight, i.e., the least expensive method that affords opponents superior confidence that responsive and non-privileged material will be identified and produced. Don’t confuse that with an obligation to kowtow to the opposition simply to avoid conflict. The scenario I’m describing is a true win-win…”
To determine the most efficient, the best methodology, though, you must first understand what that means.
Why should a party be permitted to question the scientific basis of expert opinions or the qualifications of an expert to provide an opinion, but be prohibited from examining the methods used by opposing counsel in the collection and culling process? That fact that vendors have successfully sold many judges on technology assisted review (TAR) does not mean that all TAR is workable for every production.
Forms of TAR can be heavily influenced by the party employing it and focusing more on recall and precision statistics may sound good, but they are a means toward achieving the goal and should not be the goal themselves.
What we have evolved to is a situation in which a party is arguing a particular method of culling because, given the value of the case or the volume of documents, it is the most economical. Is it the best approach or just the most economical? How do we know it is both the best and most economical approach? Will it involve predictive coding using simple passive learning; continuous active learning; a combination of both? What quality benchmarks will be used?
Today’s litigation still relies on an element of trust in the candor of your adversary. We can trust, but we should also be permitted the opportunity to verify. In today’s litigation you are no longer left to only your adversary’s candor; there are now legions of discovery lawyers, non-layers and consultants involved. But there exists the ability to keep everyone’s candor in check by simply cooperating and starting out on the same page in the discovery process. A little translucent cooperation – what would be wrong with that?