Standards for Competency in eDiscovery on the Rise – What’s Your Best Defense?

By, Howard Reissner, Esq., CEO Planet Data

The recently issued opinion in Branhaven, LLC v. Beeftek, Inc.  et.  al., 2013 WL 388429 (D. Md. Jan 4, 2013) highlights the requirements for attorneys to continuously keep abreast of changes in professional standards of competence in their fields of practice. The bar for minimum competency is rapidly rising in the e-discovery universe.  A significant percentage of federal judges have become well enough educated in this area to confidently determine which attorneys that appear in their court are both complying with the FRCP and have adequately investigated their clients data systems and infrastructure.

In “Branhaven” the court sanctioned both the client and counsel under FRCP 26 (g) for the incorrect certification of a signed response to a request for production. In fact, counsel had as of the date of the certification not made a reasonable effort to assure that the client had provided all of the information and documents available to him that are responsive to the discovery demand, yet he represented that he had done so.  The decision noted that pursuant to Rule 26 (g) (3) “if a certification violates this rule without substantial justification, the court….must impose an appropriate sanction on the signer of the party on whose behalf the signer was acting or both…”

In a second recent Federal Court decision, In re Delta/Air Tran Baggage Fee Antitrust Litigation., 846 F. Supp. 2nd 1335 (N.D. Ga. 2012), Delta Airlines was sanctioned pursuant to 26 (g) for failure to make sure that all relevant hard drives and other ESI were searched after making many assurances to the court that a reasonable inquiry had been made.

“Branhaven” and “In re Delta” are another clear signal to practicing attorneys that they will be measured against a higher standard of professional competence and scrutiny of their behavior by a judiciary that has become much more educated about technology and e-discovery over the past few years.

Along the same line of reasoning, counsel may not escape potential negative consequences due to having relied upon an outside vendor to manage part of the discovery process. In Brookfield Asset Management, Inc. v. AIG Products Corp., 2013 U.S. Dist. LEXIS 29543 (S.D.N.Y. Jan. 7, 2013); the defendant was allowed to claw back documents that had been inadvertently produced because a FRE 502 (d) agreement was in place. However, due to vendor error, the damage was done. The redacted text was visible to the plaintiff when viewing the metadata. I believe the lesson here is that an attorney should be confident that they have the knowledge to retain vendors that have significant professional expertise, utilize high quality software, and have developed work-flows and quality controls to minimize these types of painful errors.  See also: Peerless Industries, Inc.  v. Crimson AV, LLC., 2013 U.S. Dist. LEXIS 2985 (N.D. Ill. Jan. 8, 2013), where counsel was held responsible for the incomplete collection of data by a vendor. 

As a reminder to in-house counsel that they are responsible for monitoring the actions of their outside law firms, in Coquina Investments v. Rothstein, 2012 U.S. Dist. LEXIS 108712 (S.D. Fla. Aug. 3, 2012) the court imposed sanctions under Rule 37 against both the defendant and outside counsel. The findings of fact in the judge’s order will likely have substantial negative impacts for the defendant in future litigations brought by other plaintiffs.

As a participant at many legal educational forums over the past year it has become apparent to me that the federal judiciary has significantly enhanced their expertise in many of these technical areas; perhaps well beyond that of many of the lawyers that appear before them. I believe that it is good advice to encourage litigators who are still unfamiliar with their fundamental obligations in e-discovery to quickly get themselves up to professional standards. It should be apparent today that a large percentage of litigation will include some aspect of ESI. Lack of technical knowledge or the inability to employ others who do is no longer an excuse for discovery lapses.  In addition to the various types of sanctions and malpractice actions that can result from these professional lapses are the real possibility of incurring disciplinary proceedings from the state or federal Bar. See:  In re Disciplinary Proceedings Against McGrath, 174 Wash. 2nd. 813, 280 P. 3d 1091 (2012).

Although there has been a steady climb up the technology learning curve for many federal judges, there still is a wide disparity in expertise within the group. As such, an attorney is well advised to spend some time researching a particular jurist’s level of e-discovery knowledge and the professional standards that have been imposed in their courtroom.  A review of the judge’s prior published opinions (and other precedent from the jurisdiction) should be a mandatory requirement. Over the past two years a substantial number of opinions have addressed attorney cooperation, data preservation, litigation holds, processing, searching, technology assisted review (TAR), and production. 

So, what actions should an attorney take prior to commencing a case before a judge for the initial encounter? At the most basic level, all of the judges published opinions that include discovery issues should be read. In addition, any speeches, articles or other publications authored by the judge should be reviewed. Does the judge attend CLE and other professional conferences that address e-discovery? It would be prudent to seek out other counsel who had appeared before that court to seek out their experiences with that judge. Inquire as to the level of the judge’s technological savvy.  Does the judge become directly involved in discovery disputes or does she keep a “hands off” approach and let the parties work it out between themselves? Is the judge a proponent of TAR and has she allowed or mandated its use in prior cases?

So, what steps can an attorney take to get off on the right foot with the judge? First, cooperate with the opposing counsel from the outset as much as is practicable. Recently, the judiciary has taken a more active role in encouraging cooperation between counsels; see: Carrillo v. Schneider Logistics, Inc., 2012 WL 4791614 (C.D. Cal. Oct. 5, 2012), where the court awarded monetary sanctions for defendants repeated failures to cooperate in the discovery process. Also see: Easley v. Lennar Corp., 2012 WL 2244206 (D. Nev. June 15, 2012), where the court urged direct personal contact between counsel prior to filing motions to compel discovery. Finally, see: Kleen Products LLC v. Packaging Corp. of Am., 2012 WL 449865 (N.D. Ill. Sept. 28, 2012), where the judge commended the lawyers and their clients for conducting discover in a collaborative manner.  

Judges have made it clear that they do not want to be involved in “ministerial” discovery disputes. Attorneys who appear to be taking the extra steps to avoid these types of conflicts will have elevated themselves in the mind of the judge.

Secondly, take the effort to carefully consider your discovery requests, both as to scope and form of production. As the raw size of data continues to accelerate, the issue of proportionality has taken a more central role, see:  Boeynaems v. LA Fitness Int.’l, 2012 U.S. Dist. LEXIS 115272 (E.D. Pa. Aug. 16, 2012), ordering Plaintiffs to pay for additional discovery costs prior to class certification, and Juster Acquisition Co. v. North Hudson Sewerage Authority, 2013 U.S. Dist. LEXIS 18372 (D.N.J. Feb. 11, 2013), where the court granted plaintiff’s discovery request as being reasonable and not creating a cost burden that outweighed the benefits of defendants compliance as considered within the scope of the case.   These decisions emphasize that judges want cases to be decided on the merits and that discovery requests should take into consideration the value of the cases and issues under dispute.

Finally, if the judge is not as sophisticated in the technology issues as you would prefer, then provide educational resources and professional support that will validate your positions.

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