Academic journal article Defense Counsel Journal

Paradigm Shifts in E-Discovery Litigation: Cooperate or Continue to Pay Dearly

Academic journal article Defense Counsel Journal

Paradigm Shifts in E-Discovery Litigation: Cooperate or Continue to Pay Dearly

Article excerpt

THE COST of pretrial discovery has grown tremendously in recent years as discovery of electronically stored information ("ESI") has come of age. Costs climb exponentially higher when counsel misuse or abuse the discovery process, obfuscate collection and production procedures, or fail to recognize that discovery of ESI requires new skills and knowledge that do not apply to discovery of filing cabinets and banker's boxes. The resources of clients, counsel and courts are quickly overtaxed in this new era when counsel make unreasonable demands for information or fail to carefully think through the process of searching for and collecting ESI. The last few years, however, signal a collective effort by the federal courts and the leaders at the Sedona Conference to curb the runaway costs and the abuse of the rules by way of a new paradigm. In several recent opinions, federal district courts have set forth explicit guidance to attorneys regarding their duties under the rules of civil procedure in requesting and responding to discovery. Distilled to its essence, the courts' guidance is founded on principles of cooperation, fairness, reasonableness, proportionality and common sense. This article outlines seven core principles that emerge from these cases as a prescribed "ESI code of conduct" for attorneys to follow in conducting discovery. The article concludes with recent examples of situations where the ESI code of conduct was not followed and the sanctions for such failure.

Principle 1. Electronic discovery requires cooperation and transparency in all aspects of preservation and production of ESI

The predominant method for culling through huge caches of computerized information is to use "keyword" searches. Boolean keyword searching (searching for keywords using connectors like and, or, or within so many words) is only about 22 to 57 percent effective in locating responsive documents. (1) Because the limitations of keyword searching are becoming more well known, courts have begun to take a dim view of situations where parties have unilaterally crafted search term lists--or failed to talk to the people who actually wrote the documents to find out what words to look for to find more responsive information.

Early in 2008, Magistrate Judge Facciola, one of the leading jurists on e-discovery issues, took on the topic of keyword searches. United States v. O'Keefe (2) involved a prosecution of a Department of State employee for allegedly receiving, quid pro quo, gifts and other benefits from his co-defendant for expediting visa requests for employees of co-defendant's company. Resolving a discovery dispute between the parties, Judge Facciola cautioned:

   Whether search terms or "keywords"
   will yield the information sought is a
   complicated question involving the
   interplay, at least, of the sciences of
   computer technology, statistics and
   linguistics.... Given this
   complexity, for lawyers and judges to
   dare opine that a certain search term
   or terms would be more likely to
   produce information than the terms
   that were used is truly to go where
   angels fear to tread. This topic is
   clearly beyond the key of a layman
   and requires that any such conclusion
   be based on evidence that, for
   example, meets the criteria of Rule
   702 of the Federal Rules of
   Evidence. (3)

It turned out that O "Keefe was just an opening salvo on the inadequacies of keyword searching and counsel's inability to address them. (4)

Last year, Magistrate Judge Peck in the Southern District of New York, issued a "wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information." (5) The case involved a multimillion dollar dispute over alleged defects and delay in the construction of the Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. …

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