The Masters Conference: Blog
The Masters Conference blog is a place where Master Presenters will contribute regular commentary, descriptions of events, or other material such as articles, news or topics of interest.
09/16/08
Discovery from the European Perspective
By Nigel Murray
Blog member The Masters Conference
On a recent discovery project in France, we wanted to use the weekend to expedite our task. No go. French law mandates adherence to the 35-hour work week. We were not allowed into the client’s offices because no employee had enough hours available to supervise us.
Just as work customs and laws are different, regulations governing electronic discovery are not the same in Europe as in the U.S.—and they vary from nation to nation and state to state within the European Union.
Over the last couple of years, I have seen in Europe a dramatic increase in primarily U.S.-based international disputes. Regulatory matters can have international considerations, such as SEC and DOJ inquiries involving subsidiaries or even parent companies based in Europe. Cases include money laundering inquiries and, more recently, investigations regarding the Foreign Corrupt Practices Act. U.S. law firms and corporations faced with international matters should understand what is going on in the U.K. and the European Union, in terms of eDiscovery.
In the U.K., discovery is called disclosure. It is a “push” rather than a “pull” system. The lawyer for a party is legally an officer of the court. As such, the lawyer must hand over to the other party all documents that directly support both their client’s position and the other party’s position. Each party discloses to the other the relevant documents in the case. In the U.S., the giving party must respond to a request—often with no real idea as to the scope and size of the request.
Overall, a major difference between the English and U.S. legal systems regarding litigation is that the loser pays both party’s costs—all of them, unless it has been agreed beforehand that some elements will be shared (for example, setting up an electronic courtroom).
I would note two other differences. First, in the U.K. we have no juries in civil litigation, only in criminal cases. Accordingly, the use of technology has been slow to evolve in civil courts; this is changing for the better. Second, insurance-funded class action disputes are rare (though they are starting to pick up). I was involved in one in the mid-1990s—the first and only tobacco litigation held in the U.K. The claimants lost, which caused quite a bit of suffering because they personally had to pay the tobacco companies’ legal costs. This successfully put people off class actions.
In a U.S.-based matter (litigation or regulatory) involving data based in Europe, four key questions need to be addressed:
• How do I identify what needs to be collected? Once I do, what must I do before starting a collection?
• Can I collect, and if so, how and where?
• Can I process, and if so, where?
• What can be shipped for review—or must the review occur onsite, within the country, within another EU country or within an outside country that is deemed to provide adequate protection (Canada, for example)?
Each matter must be addressed on an individual basis, taking into account the type of case, the country, the client, the type of data to be collected and the local laws. Collecting data in the EU should be approached with great caution, because the person doing it could end up in jail.
Working methods can affect your eDiscovery project abroad. The average European does not work like Americans. We like our holidays, and the idea of working on a 24-hour basis is alien to some. In France, as you read above, the 35-hour work week is strictly enforced.
Nigel Murray is the founder and managing director of TRILANTIC, a European-based legal support company focused on the eDisclosure / eDiscovery market. Nigel began his career in legal technology as a litigation support manager at a major London international law firm. He then started the first British litigation support company in 1993 – Bowhawk, working on massive cases of the 90’s - tobacco, BCCI etc. From there, Nigel brought the electronic side of litigation support into an existing document management company by way of a merger.
Having worked on the first U.K. eDisclosure matter in 2001, Nigel has been at the forefront of the development of the industry within the major law firms in the U.K. Nigel launched TRILANTIC in September of 2005 and speaks regularly on all aspects of eDiscovery in the U.S, the U.K. and mainland Europe. Nigel can be reached at nigel.murray@trilantic.co.uk.
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08/22/08
The "Zubulake" Duty Challenge
By Ralph Losey, shareholder, Akerman & Senterfitt, P.A.-Orlando Office
Blog member The Masters Conference
Courts and the new rules place a burden on in-house and outside counsel, jointly, to ensure that all relevant electronic data are gathered and preserved. Attorneys, especially outside counsel of record, are required to understand their client's computer architecture, policies, and actual practices, both company-wide and user-by-user. Ignorance of the technology is no defense. This is a huge challenge for most attorneys, especially experienced litigation attorneys who have been trained in the "paper chase," and typically have little, if any specialized computer skills.
Litigation attorneys today are not only supposed to interview fact witnesses, but also their client's IT personnel. In most district courts today, and a growing number of state courts, attorneys are not permitted to just rely on the assurances of senior management and in-house counsel concerning e-discovery compliance. They are supposed to personally verify that all discoverable electronic information has been identified, preserved, gathered and produced.
Judge Scheindlin in Zubulake, the leading jurist in this fiel, stated that she expected all counsel in her court to speak directly with the key players about their electronic documents, including their clients IT personnel. Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004) ("Zubulake V"). I refer to this as the "Zubulake duty." E-Discovery: Current Trends and Cases (ABA 2008) at pgs. 55-65. Here are Judge Scheindlin's actual words on the subject in Zubulake V:
Counsel must become fully familiar with her client's document retention policies, as well as the client's data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures in the actual (as opposed to theoretical) implementation of the firm's recycling policy. It will also involve communicating with the "key players" in the litigation, in order to understand how they stored information.
In most instances, unless in-house counsel files a notice of appearance, Judge Scheindlin's Zubulake duty requires outside counsel to actually conduct these interviews. It is not enough to simply rely upon the efforts of the client, even the client's in-house legal counsel (unless they appear of record in the case).
Although this is a controversial requirement, and upsetting to many serial litigators and lawyers alike, it appears to be consistently followed by federal magistrates and district court judges around the country. A few commentators have, however, criticized this requirement for a variety of reasons. Chief among them is Thomas Y. Allman, who was himself an in-house attorney for many years. He thinks that Judge Scheindlin is wrong on this point, that outside counsel should be able to rely upon the representations of their clients that e-discovery has been handled properly. He contends it should be sufficient for in-house counsel to speak to the IT personnel, and relay pertinent points to outside counsel. Many in-house counsel agree with Tom on this point.
Tom has written a short article on this subject, which was just published in Law Technology News. Pandora's Box: Compliance Quagmires Can Alienate Legal Teams, 15 Law Technology News No. 8 at pg. 26 (August 8, 2008). Here is an excerpt from Tom's article:
The implication -- when applied literally to clients with significant in-house e-discovery capability -- is that retained counsel may not rely upon the reasonable assurances by a client about discovery compliance. However, entities that can afford to do so are increasingly responding to electronic data discovery demands by designating in-house teams to be responsible for accomplishing the task of EDD management in a cost-effective and compliant manner. This, in turn, raises the possibility of unseemly conflict with retained counsel when things go wrong, as they can easily do in e-discovery.
Retained counsel not satisfied with the response may seek to resign if unable to satisfy themselves that their ethical and practical obligations are being met. The problem is that the client may feel compelled to accept counsel demands at the risk of losing its chosen representative. This is not a choice that should be encouraged. It makes sense, therefore, to acknowledge the validity and importance of client decisions on how to allocate discovery responsibility. The quest for a single best practices rule, focusing on a duty to supervise by retained counsel, is understandable, but misplaced.
There is certainly merit to Tom's criticism, but, in my view, the Qualcomm v. Broadcom case, which is still in progress in San Diego federal court, significantly undermines this kind of opposition to Zubulake. Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) (one of several relevant decisions in this case). Qualcomm is an unfortunate situation where outside counsel's over-reliance on in-house counsel led to unethical behavior and outright fraud-on-the-court.
Although eventually Tom Allman's position may prevail, to date, there is no court decision criticizing Judge Scheindlin's ruling. For the time being, the placement of the Zubulake duty remains squarely on the shoulders of outside counsel. Inside counsel can and should help bear the load, but at the end of the day, outside counsel are the ones who sign the discovery responses and must answer to the judge.
This is especially problematic for companies who are routinely involved with dozens, if not hundreds of lawsuits. A company routinely engaged in litigation cannot afford to bring every counsel it hires up to speed on the company's computer systems. Such ongoing training of different lawyers in every case wastes IT staff time, increases legal fees, and magnifies the risk of inconsistent positions and outright mistakes. In short, a series of different local counsel talking to IT staff is disruptive, expensive and invites mistakes. Yet, this is exactly what the Zubulake duty seems to require.
It seems to me the only viable solution to this problem is for a company to retain one or more specialty e-discovery lawyers to serve as outside counsel in all cases involving significant e-discovery issues. That way, a company would only have to educate a few specialty e-counsel as to their IT systems. That would not only be less disruptive, but also improve quality and consistency. The e-discovery specialists would only handle the electronic discovery issues, and leave the rest of the case to local counsel. This frees trial counsel to do what they do best, try cases, not mess around with computers.
Although there is some territorial type resistance by the trial bar to this proposal, once they try it (or it is forced upon them by the client), and see how well it can work, they are pleased. It alleviates them of the burden to try to learn IT systems, and pretend like they know what they are doing in this new area of the law. The truth is, the IT systems of most large companies are so complicated, that only an attorney who specializes in this area of law can do it properly. Even then is requires lot of hard work and attention to details. This is a highly arcane area, and lawyer dabblers often get themselves (and their clients) into deep trouble before they even realize what they have done.
I understood the need for full time e-discovery specialists about two years ago. At that time, I turned over my trial practice to other attorneys at my law firm, Akerman Senterfitt, and switched to a full-time e-discovery practice. With the support and encouragement of my firm, I also set up an e-Discovery practice group at Akerman.
The Akerman e-discovery team is now well established and supports Akerman's litigation attorneys around the country, and our clients with e-discovery issues. I do this kind of work, and nothing else, 24/7, and love it. The truth is, although I enjoyed the precedent making aspects of my former career as a litigator at Akerman (I am proud to have over seventy published opinions to my credit), I like e-discovery much more. For me, and attorneys like me, such as Michael Simon in Los Angeles, who is my co-chair of the Akerman e-discovery team, computers are a joy. We like nothing better than to learn new IT systems and software. For us, e-discovery and the Zubulake duty is not an oppressive burden, it is a joyful practice. While most trial attorneys say "oh no," we say "bring it on!"
Ralph Losey is a shareholder in the Orlando office of Akerman & Senterfitt, P.A., where he leads the firm's national Electronic Discovery practice group. Author of the American Bar Association's feature book on e-discovery for 2008, e-Discovery: Current Trends and Cases, Mr. Losey's multi-media weekly blog e-Discovery Team has received notable attention as a resource for the latest trends, events, cases and analysis in the e-discovery space. After having practiced commercial and employment litigation since 1980, with over 70 published opinions, Mr. Losey's work at Akerman is now limited to electronic discovery. He balances his time between supervising the e-discovery aspects of major litigation handled by his firm, assisting clients in the formation and operation of their own e-discovery teams, serving as their national e-counsel, and participating in speaking engagements internationally.
{O1324721;1}RLRalph Losey Copyright 2008
Link to: http://floridalawfirm.com/index.html
08/08/08
What Corporate Counsel Want
By Ari Kaplan, Founder, Ari Kaplan Advisors
Blog member The Masters Conference
The economy is slowing and corporate counsel are tightening their budgets like everyone else, but they still want value in the form of responsiveness, experience and the collaborative nature of their partners. As a community, in-house lawyers want skilled individuals that provide solutions to their problems and create honest relationships founded on integrity.
The also want to:
* Identify better ways to reduce the volume of material that human beings need to review.
* Manage the proliferation of electronic records at the creation stage.
* Standardize retention policies with respect to e-mail and expand it to other forms of communication, such as instant and unified messaging.
* Centralize control and storage of electronic documents, improved sorting and enhanced identification of electronic records.
* More effectively identify the total cost of litigation.
Electronic discovery is no longer an enigmatic element of legal practice. The rules are mature and most companies have digital records. The responsibility for their maintenance, however, is shifting. A single person or department no longer manages them. That management is now left to collaborative teams of professionals who understand the technical aspects of the process and anticipate shifts in the landscape.
Corporate counsel want those teams to navigate the process seamlessly.
Ari Kaplan is the founder of Ari Kaplan Advisors and author of The Opportunity Maker: Strategies for Inspiring Your Legal Career Through Creative Networking and Business Development (Thomson-West, 2008). He teaches professionals how to promote their work through in-house programming and personal coaching. Kaplan also conducts industry research and writes white papers, case studies and client profiles for legal technology companies. Learn more about what corporate counsel want in A Conversation with Corporate Counsel: e-Discovery Trends and Perspectives.
07/17/08
Welcome to the Masters Conference Blog
By Sasha Hefler
Blog member The Masters Conference
The amended Federal Rules of Civil Procedure that were implemented December 2006 ignited more than new parameters pertaining to discovery and electronically stored information (ESI). It has changed the legal landscape and how legal professionals have managed business, business intelligence and litigation. A plethora of literature, cases and conferences have been developed in an effort to make sense of the impact and a handful of true thought-leaders have emerged to help educate and guide corporations in a direction that does not lead to severe consequences for all involved.
The Masters Conference was formed to provide an avenue for learning about the evolving legal landscape in a new way. The conference brings experts in the industry together to discuss and develop solutions that will fit arising needs. Our mission is to have speakers, vendors and attendees work as a team. Speakers educate on best practices, vendors develop and demonstrate innovative technologies and services, and attendees speak about practical implications. Through valuable networking and collaboration, everyone brings thought-leadership knowledge back to the office, which helps reduce the challenges and risks of our ever-changing legal landscape.
The Masters Conference is an important educational opportunity, but as rules are enforced and decisions are made, we felt it was necessary to keep the legal community abreast by launching a blog. This blog opens the door into the minds of industry thought-leaders TRUE MASTERS OF THE PROFESSION and will keep practitioners on the cutting edge of the legal arena.
This is the place where experts in the industry share information on best practices and lessons learned.
I hope you enjoy reading our new blog!
Sincerely,
Sasha Hefler
President Masters Conference