Preparation is critical for a successful meet and confer, but so is performance on game day. What counsel says and does at the meet and confer - and in any judicial proceedings connected with it - still counts for plenty. This article provides an overview of recent federal court decisions that have excoriated lawyers for failure to properly conduct themselves at a meet and confer. The lessons learned can help to plan your own meet and confer strategy.
Defensible Searching And Sampling
The volume of electronic data is so great it is now incumbent on counsel and litigants to use search and sampling techniques to cull down the volume of data.
Sedona Principle Number 11 states:
A responding party may satisfy its good faith obligation to preserve and produce potentially responsive electronic data and documents by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data most likely to contain responsive information.
This means some agreement will be required early on, or failing that, defensibility if the other side will not agree. Defensibility means expert evidence a court can act on, not the say-so of counsel. Three federal decisions from 2008 put the brakes on the practice of simply brainstorming a keyword list to cull down electronic data. They're all from the D.C. beltway:
• United States v. O'Keefe, 537 F.Supp. 14 (D.D.C. 2008) U.S. Magistrate Judge John M. Facciola
Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) U.S. Magistrate Judge Paul W. Grimm
Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008) U.S. Magistrate Judge John M. Facciola
As Judge Facciola stated in U.S. v O'Keefe :
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 ken of a layman."
In Victor Stanley , Judge Grimm says at page 22:
Viewed in its proper context, all that O'Keefe and Equity Analytics required was that the parties be prepared to back up their positions with respect to a dispute involving the appropriateness of ESI search and information retrieval methodology - obviously an area of science or technology - with reliable information from someone with the qualifications to provide helpful opinions, not conclusory argument by counsel."
In other words, counsel can neither assert nor dispute the sufficiency of a keyword search in submissions from the counsel table without prior substantiation from the witness stand (or a sworn affidavit) from a qualified testifier.
A few months later, Judge Peck of the Southern District of New York chimed in with a five page ruling that says more than some opinions ten times that length, in the Gross Construction case.[Wm. A. Gross Constr. Assocs. v. Am.Mfrs. Mut. Ins.Co., No. 07 Civ. 10639, (S.D.N.Y. Mar. 19, 2009)]
The keyword list suggested by the defendant (which was sketchy at best) contained both "Authority" and "Dormitory Authority." His honor noted that "The court is no keyword expert, but if one is searching for 'Authority,' to also search for 'Dormitory Authority' is clearly redundant."
Not only was this list not created by qualified experts, it did not even rise to the level of work of a reasonably competent lawyer, nor even the level of a reasonably competent layperson.
Lawyers for the other parties performed no more impressively. They suggested thousands of search terms, including so many commonplace words that everything on the servers would have to be produced.
Moreover, lawyers on both sides failed to undertake the most basic and obvious inquiry: they did not interview any of the custodians of the data! If they had retained experts in linguistics, this is one of the first things those experts would have done. If the experts take the view that their own work is flawed if they don't start with the custodians of the data, then so much the worse when lawyers without the assistance of experts don't even bother to speak to the custodians.
If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.
So wrote District Judge Wayne Alley, in Krueger v. Pelican Products Corp., a 1989 decision in the Western District of Oklahoma. [Krueger v. Pelican Products Corp., C/A No. 87-2385-A (W.D. Okla. 1989)]
Magistrate Judge Paul Grimm brought this judicial gem back to prominence when he quoted it nearly two decades later in Mancia v Mayflower. [Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)]
Brass-knuckled discovery, whatever its merits may have been in the pre-electronic era, has no place now. The rules have changed, and everyone in the profession needs to be made aware of that. One bully pulpit from which this has been pronounced is The Sedona Conference ® , which issued its Cooperation Proclamation in July 2008. The first paragraphs read:
The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information. In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes - in some cases precluding adjudication on the merits altogether."
With this Proclamation, The Sedona Conference®launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.
Cooperation In Discovery Is Consistent With Zealous Advocacy
The proclamation has been judicially approved numerous times, one of the most notable instances being Judge Grimm's decision in in Mancia v Mayflower, mentioned earlier.
The judge wrote:
Lawyers customarily serve interrogatories and document production requests that are far broader, more redundant and burdensome than necessary. The rationalization for this behavior is that the [requesting] party does not know enough information to more narrowly tailor themThis would not be so if lawyers approached discovery responsibly and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost - to all parties - is proportional to what is at stake in the litigation.
Likewise, boilerplate objections that a request for discovery is 'overbroad and unduly burdensome' persist despite a litany of decisions from courts that such objections are improper unless based on particularized facts.
It is in the interests of each of the parties to engage in this process cooperatively. In fact, the cooperation that is necessary for this process to take place enhances the legitimate goals of the adversary system, by facilitating discovery of the facts needed to support the claims and defenses that have been raised, at a lesser cost, and expediting the time when the case may be resolved on its merits, or settled.
Judge Waxse of the District of Kansas has a unique way of making counsel co-operate. When attorneys in a discovery dispute motion appear in front of him, he requires them to meet to resolve the matter on their own with a videographer , so he can see how the meeting was conducted if they still haven't agreed after it is over.
He has not had to watch a videotape yet.
The Duty Of Candor
Be absolutely certain about what you represent to opposing counsel at themeetandconfer, and about what you advise thecourt.
Bray was an unusual case where sanctions were imposed on the lawyers only , and not their client, for careless misrepresentations made to opposing counsel and to the court about the nature of their electronic discovery efforts. Even more unusual: the court initiated the motion. No lawyer wants to be on the receiving end of that kind of notice. [Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009)]
As Judge Waxse advised the audience at LegalTech West Coast in June 2009, it is better to tell a judge "I don't know" than it is to make up an answer you think is right "just to get me to shut up." Of course, counsel must then make it clear to the judge that whatever it is they do not know, they will do their best to find out and then follow through on that commitment to the court.
Finally, Meet And Confer Is Not A One-Time Thing
It is also a mistake to think of the meet and confer as a one-time event. In fact, one of the main topics of your first meet and confer should be a discussion of when you will have the next one. An expectation that there will be more than one meet and confer removes the pressure for hard-line posturing, and sets the stage for greater cooperation.
Counsel should conduct themselves with the understanding that they're going see the group on the opposite side of the table again. This alone should promote greater civility. It will also likely promote a more relaxed atmosphere.
Virginia P. Henschel is Vice President of E-discovery Affairs for Applied Discovery. In this role, she advises clients on best practices for litigation readiness for e-discovery, including data mapping, database development, litigation hold notices, meet and confer preparation and managed reviews. Ms. Henschel previously served as e-discovery counsel for Sunoco, Inc., specializing in multi-district, complex litigation. Prior to joining Sunoco, Inc., she served as assistant general counsel for a global Fortune 500 corporation where she managed global risk and litigation.