Pick Up the Telephone

Word processing has not been immune from disputes.  One court recently criticized a memorandum that had “21 footnotes that are packed with over 100 lines of small-font text. That probably would have added 4 pages or more of 12-point font text. And, those footnotes are not merely casual asides; they encompass nearly all of plaintiffs’ cited legal authorities and accompanying discussions. Dropping so large and so significant a portion of your brief into footnotes certainly does not make it any easier to read and follow….”  Sometimes Discovery Disputes Do Not Bring Out the Best in Us (June 20, 2024).

In Court scolds Weil partner for brief found to ‘incorporate by reference’ nearly 2,000 words from another document (abajournal.com)(Feb. 20, 2024), Debra C. Weiss reported that an attorney “apparently missed an opinion telling his law firm that incorporating an argument by reference can’t be used to exceed word-count limits in briefs, according to the U.S. Court of Appeals for the Federal Circuit.”  He incorporated by reference 2,000 words from a prior brief in a related case, thereby exceeding the permitted limit by more than 1,300 words.

Perhaps the latest iteration of the word processing wars is Debra C. Weiss, Blaming Word setting for overlong briefs is ‘somewhat hard to believe,’ federal judge says as she tosses footnotes (abajournal.com) (Apr. 1, 2024).  There a litigant filed overlong briefs and Ms. Weiss wrote:

[Counsel] was unaware that the Microsoft Word settings had deselected the option to include footnotes in the final word count of the document. The briefs were within word limits allowed by local rules when the footnotes were excluded.

High 5 Games had certified that one of its briefs contained 8,400 words when it actually contained more than 9,000. It certified that another brief had 4,199 words, when it actually contained more than 4,300 words.

Although defendant erred, plaintiff went nuclear and moved for sanctions, asserting intentional misrepresentation.  Id.

While the Judge expressed skepticism that the error was entirely without anyone’s knowledge, “given the experience and sophistication of counsel for High 5 Games,” it reached a Solomon-like result.  Id.

High 5 agreed that the court should exclude the text in the footnotes from consideration on the summary judgment motion and the court, doing so, denied the request for monetary sanctions. Id.

That decision is not a unicorn:

Federal courts routinely warn litigants not to use textual footnotes to evade page limits. See Kano v. Nat’l Consumer Coop. Bank, 22 F.3d 899 (9th Cir.1994) (imposing sanctions on a party who violated form of brief rule through improper line spacing and excessive footnotes); DeMarco v. DepoTech Corp., CV 98–675–TW (POR), 1999 U.S. Dist. LEXIS 15321 (striking party’s reply memorandum due to excessive use of single-spaced footnotes). The excessive use of footnotes is not only disrespectful to this Court and to opposing counsel, but also unduly complicates the Court’s task and makes Defendant’s memorandum more difficult to comprehend.

Accordingly, Defendant’s Opposition and attached exhibits are hereby STRICKEN from the record, and Plaintiff’s Motion, currently set for hearing on October 21, 2013, is TAKEN OFF CALENDAR.

Caldera v. J.M. Smucker Co., 2013 WL 6987893, at *1 (C.D. Cal. Oct. 4, 2013).

The additional, curative remedy was unequivocal:

Defendant SHALL refile its Opposition no later than October 14, 2013, without any footnotes. If the information is important enough for the Court to consider, it shall be included in the text. If not, it shall not be included at all.

Id. (emphasis added).

“Court orders mean what they say, and compliance is not optional. Lawyers often find themselves wishing for more pages or more time, but ultimately must comply with limitations, deadlines, and other such restrictions imposed by the court. A lawyer’s deliberate violation of a court order is an abuse of process that requires an appropriate sanction….  The court PUBLICLY REPRIMANDS Mr. Edwards and Ms. Edwards for violating a court order.”  McClinton v. Cogency Glob., Inc., 2023 WL 3268782, at *3–4 (N.D. Ala. May 4, 2023).

“Both parties, but especially Plaintiffs, used excessively long footnotes to present legal argument and authority and thereby evaded the page limits. The Court warns the parties that future memoranda with similarly excessive footnotes may be stricken.”  SOS Co. v. E-Collar Techs., Inc., 2017 WL 5714716, at *1 (C.D. Cal. Oct. 17, 2017).

“As an initial matter, the Court admonishes Plaintiff, who is an attorney admitted to practice in this state and district, for his use of excessive footnotes in what appears to be an attempt to circumvent this district’s page limits. Plaintiff’s original opposition was over 28 pages long, and Plaintiff also included arguments in opposition in his Ex Parte Application. After the Court struck Plaintiff’s original opposition and directed him to re-file an opposition that did not exceed the 25-page limit, Plaintiff filed the pending Opposition. Although the Memorandum of Points and Authorities in support of the Opposition is exactly 25 pages long, it includes 18 single-spaced footnotes, most of which are very lengthy. Out of the 25 pages, ten pages are at least half filled with single-spaced footnotes, and five of those ten pages contain only two or three lines of regular text, with the remainder of the page consisting of single-spaced footnotes. See Opp’n at 14, 25, 29, 30, 36. The footnotes contain multiple citations to law and argument as to why Plaintiff’s claims should survive. Thus, the footnotes include the core of Plaintiff’s arguments in opposition. Had Plaintiff included some of these footnotes in the text of his Opposition brief, the brief would have likely exceeded the page limit. It would be within the discretion of the Court to strike the Opposition for Plaintiff’s excessive use of footnotes.”  Tenser v. Ryan, 2020 WL 4760192, at *7 (C.D. Cal. May 26, 2020), report and recommendation adopted, 2020 WL 5946078 (C.D. Cal. Oct. 7, 2020), aff’d sub nom. Tenser v. Silverman, 2021 WL 4958986 (9th Cir. Oct. 26, 2021).

“The Court prohibits the use of excessive footnotes in briefs. A brief supporting a motion or response may not contain more than 30 lines of footnotes. A brief supporting a reply may not contain more than 15 lines of footnotes.”  Bus. Health Sols., P.C. v. Am. Health Cap., 2023 WL 9060443, at *1 (E.D. Mich. Oct. 23, 2023).

One court has a standing order that excessive footnotes will be disregarded.  NOSSK, Inc. v. Fitness Anywhere LLC, 2022 WL 1489467, at *5 (N.D. Cal. May 11, 2022).

Another court imposed a limit in the midst of a dispute:  “Saber objects to Larkin’s excessive use of footnotes. It points to this Court’s individual practices, which counsel that “footnotes are highly disfavored and should be used sparingly.” And it says the Court should impose “a consequence.” Dkt. 78 at 2. But there is no bar on excessive footnotes, and it would be unfair to impose one retroactively. Counsel may choose to ignore the Court’s advice at their own peril. Indeed, here, Larkin’s constant footnoting and running up the citation score often reflected a lack of focus more than anything else. The Court will, however, make a change for this case going forward: any footnotes used in future briefing in this case (by either side) must match the font size and spacing of the body text. That is, footnotes should offer no page-count advantage going forward.”  Larkin v. Saber Auto., LLC, 2024 WL 2882595, at *10 (S.D.N.Y. June 6, 2024).

An article by Rose Krebs, “Attys In Google Maps Case Chided for Wordy Footnotes” (Law 360 Apr. 15, 2024), reported a show cause order directing counsel to show why their footnotes were not “calculated to evade the letter and spirit of page limits” set by the Local Rules.

This brings to mind Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960):

The issue is, what is chicken? Plaintiff says ‘chicken’ means a young chicken, suitable for broiling and frying. Defendant says ‘chicken’ means any bird of that genus that meets contract specifications on weight and quality, including what it calls ‘stewing chicken’ and plaintiff pejoratively terms ‘fowl’. Dictionaries give both meanings, as well as some others not relevant here. To support its, plaintiff sends a number of volleys over the net; defendant essays to return them and adds a few serves of its own. Assuming that both parties were acting in good faith, the case nicely illustrates Holmes’ remark ‘that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs— not on the parties’ having meant the same thing but on their having said the same thing.’ The Path of the Law, in Collected Legal Papers, p. 178. I have concluded that plaintiff has not sustained its burden of persuasion that the contract used ‘chicken’ in the narrower sense.

The court concluded that “the word ‘chicken’ standing alone is ambiguous…. When all the evidence is reviewed, it is clear that defendant believed it could comply with the contracts by delivering stewing chicken in the 2 1/2-3 lbs. size. Defendant’s subjective intent would not be significant if this did not coincide with an objective meaning of ‘chicken.’”

More recently, in U. S. ex rel. Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958, at *1 n. 2 (N.D. Ill. June 17, 2024), the court wrote that: “There is no need to waste much time parsing and sifting through the parties’ back and forth regarding each of the nearly two dozen questions and responses the parties have asked the court to look at for them. Life is short.”  Id. at *5 (emphasis added), as quoted in Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun. 20, 2024).

Sometimes, the best approach may be to use old technology – pick up the telephone.

“The practice of law may be poetically likened to sailing a ship. Constitutions, case law, and legislative enactments are to the lawyer what charts, buoys, and beacons are to the sailor. The compass, however, is generally agreed to be the most important navigational aid on ship.”

“The Maryland Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he files and tries a case.”

Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977) (emphasis added).

The “rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions go unheeded by some practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum.” Colonial Carpets, 36 Md.App. at 584-85, 374 A.2d at 421.

“Attorneys practicing before this court disregard the Federal Rules of Civil Procedure and Local Rules at their peril.”  Black v. Quest Diagnostics Inc., 2005 WL 8174704, at *2 (D. Md. Nov. 17, 2005).

The interview is posted on Mike Berman Chats with Rachi and Tom (youtube.com).

eDiscovery Channel – YouTube discusses a wide range of topics in the eDiscovery space.  The Channel explains that “Tom interviews a variety of legal luminaries and includes regular discussions with Rachi Messing. Twice monthly, Tom teams up with Rachi to interview eDiscovery subject matter experts. Tom then takes the off weeks to interview others in the space on his own.”

Interviews have included the Hon. Paul W. Grimm, the Hon. Xavier Rodriguez, the Hon. Andrew Peck,  the Hon. John Facciola, the Hon. Scott Schlegal, Craig Ball, Esq. of Ball in Your Court, Doug Austin, Esq., of eDiscovery Today, Maura Grossman, Esq., Ralph Losey, Esq., Cat Casey of Reveal, Bill Hamilton of UF Levin College of Law, the Gallivan brothers of Digital War Room, the late Browning Marean, and many other great resources too numerous to list.  In fact, 123 videos are posted.

It is well worth subscribing to @eDiscoveryChannel.  For example, while artificial intelligence is now a hot topic, 4 years ago, Tom posted A Discussion by Tom O’Connor regarding the importance of why attorneys should understand AI. (youtube.com).  And, as always,[1] Tom addresses The Small Case Solution (youtube.com)

As the YouTube Channel states: “Tom O’Connor has a knack for bringing out the best in people with his casual style of interviewing. His guests span the entire gamut of legal professionals ranging from software developers to marketing professionals in the eDiscovery space.”

I would like to express my thanks to Tom and Rachi for this wonderful opportunity.

____

[1] For a review of Tom’s book, see Book Review:  Any Ship Can Be a Minesweeper – – –  Once.  For a copy, see EDISCOVERY FOR THE REST OF US (gulfltc.org) or Nextpoint, Tom O’Connor Launch eDiscovery Book at Legalweek.

• How to Read a Load File
• More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”
• Possession, Custody, or Control – Part II
• Don’t Be Too Nice When You Send a Preservation Notice
• Relevance Redactions Revisited
• ABA Formal Opinion on Misconduct in Virtual Depositions
• Maryland Rules Order Amends Sanctions Rule
• Maryland Amends Ethics Rule 4.4(c)
• Maryland’s “Sunshine Law”:  Cooperation, Searches, Metadata, and Costs (Part III)
• Fowler Cell Phone Decision Affirmed, updating District of Maryland Sets Guidelines for Cell Phone Preservation in Place
• Candor Pays Off When It Comes to Alleged Spoliation: Notice + Accrual = Claims Bar
• Should an ESI Protocol Be Incorporated Into a Court Order?

Two hypertechnical blogs are:

• Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight
• What is Double Spacing?

I have written to the American Bar Association to ask whether it has taken a position on the threats against the Colorado Supreme Court.  Threats Against the Colorado Supreme Court Must Be Called Out.  I will update the blog when I receive an answer.

And, of course, there is always the important question of Is it Spoliation to Bury a Dead Cow?

Happy New Year!

The dispute reminds me of the very funny You Tube video of a deposition called “What is a Photocopier?” In short,  that deposition included the following: “When you say photocopy machine, what do you mean?…. There’s different types of photocopy machines…. It’s not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, [or] that uses scanning technology.  See Pouncing on Little Ambiguities Leads to Discovery Sanctions (citing video and transcript)

Here, the question was what does “double spaced” mean under a Local Rule?

First, defendants filed a “motion to require adherence with formatting requirements,” and Ms. Weiss reported that:

The BigLaw firms complained that the plaintiffs’ opposition to a motion for summary judgment wasn’t double-spaced because the lines were 24 points apart, allowing about 27 lines per page instead of the more standard 23 lines. The firms wanted a court order for 28 points between lines, said to be the default spacing used in Microsoft Word, Google Docs and Apple Pages.

Defendants argued that plaintiffs obtained approximately 24 additional pages by the closer spacing. See Motion to Address Brief Formatting Requirements.docx (abovethelaw.com)

Plaintiffs filed an opposition supported by a typography expert. Id.  “The plaintiffs also said the BigLaw firms had used 24-point line spacing in some documents filed with the court.”  Id.

The ABA article states that “the parties … used more than 60 pages of briefing and exhibits to argue over the meaning of double-spacing.”

The Court was unimpressed and Ms. Weiss reported that the Judge advised the “law firms involved in a kerfuffle over double-spacing that they should spend less time ‘figuring out how many sometimes-useless words will fit on a page.’”

Double Spaced Kerfuffle

The ABA posted the unreported decision in Jones v. Varsity Brands, LLC, No. 2:20-cv-02892-SHL-tmp (W.D. Tenn. Nov. 14, 2023).

It is three-pages and, it appears to me, it is double-spaced.  However, I failed to measure the number of points between the lines.  In fact, I’m not sure I know how to do that.

Amazingly, Judge Lipman cited to a split of authority, writing that “Courts have taken different approaches to this issue.”  However, the Judge added: “Reading between the slightly larger spaced lines, it appears that Defendants initially raised this issue in an attempt to extend their time to file a reply in support of their Motion for Summary Judgment.”

The court concluded:

As Defendants point out, the issue of what constitutes a double space has not been raised in this district…  The Local Rules themselves do not take a position on the definition of “double spaced.” Therefore, the Court finds that Plaintiffs’ use of twenty-four point spacing does not violate Local Rule 7.1 and DENIES the Motion. However, in so finding, the Court does not take a position on the correct definition of “double spaced. [emphasis added].

As Ms. Cassens noted, the court’s closing remark was that the dispute “displays both sides’ tendency toward overkill,” adding:

The Court further notes that the last thing any party needs is more words on a page. The length of an argument is no guarantee of its success, and indeed could result in more confusion, not clarity. Moving forward, the Parties are encouraged to spend their valuable time focusing on the merits of this case, and certainly not figuring out how many sometimes-useless words will fit on a page. [emphasis added].

The Maryland Fiscal and Policy Note, 2016 Sess., S.B. 239 (Feb. 18, 2016), states that: “The bill is a based on revised version of the Uniform Fiduciary Access to Digital Assets Act (UFADAA) drafted by the National Conference of Commissioners on Uniform State Laws (also known as the Uniform Law Commission (ULC)).”   The Maryland statute should be construed to provide uniformity.  ET §15-616.  Most states have enacted the UFADAA. See Fiduciary Access to Digital Assets Act, Revised – Uniform Law Commission (uniformlaws.org)

The Fiscal Note states:

The bill enables a fiduciary to “step into the shoes” of the account holder. When taking action concerning a digital asset, a fiduciary is bound by the same authorizations and limitations that bound the account holder before the incapacitation or death of the account holder. Generally, unless a user specifically prohibits disclosure of digital assets, or a court order directs otherwise, a custodian must disclose, with appropriate authorization, at least a catalogue of electronic communications and other digital assets to the fiduciary. The content of electronic communications must also be disclosed by the custodian with proper authorization, as specified in the bill.

Basically, the statute permits a “user” to override a contrary provision in a will or “terms of service” agreement to provide a designee with specified access to digital assets after death or incapacity.  A “user” is an account holder.  A “custodian” is “a person who carries, maintains, processes, receives, or stores a digital asset of an account holder.”

The designated person receives no “new or expanded rights other than those held by the user….” ET §15-604(b).  The Unform Law Commission explains the act as follows: “When a person  dies or loses the capacity to manage his or her affairs, a fiduciary receives legal authority to manage or distribute the person’s property as appropriate. Most people now have a great variety of digital assets, including photographs, documents, social media accounts, web sites, and more, some of which present special privacy concerns. Revised UFADAA provides the legal authority for a fiduciary to manage digital assets in accordance with the user’s estate plan, while ensuring that a user’s private electronic communications remain private unless the user consented to disclosure.”

A user may use an “online tool to direct a custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.”  That direction overrides a contrary provision in a will or trust. ET §15-603(a).

Alternatively, “the user may, in a will, trust, power of attorney, or other record, allow or prohibit disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.”  ET §15-603(b).

If the user exercises either option, the direction “shall override a contrary provision in a terms-of-service agreement, if the terms-of-service agreement does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.”  ET §15-603(c).

Facebook and Google have supported the uniform act. Fiduciary Access to Digital Assets Act, Revised – Uniform Law Commission (uniformlaws.org)

Facebook has a process to memorialize or remove an account.  Request to Memorialize or Remove an Account | Facebook Help Center.  Facebook states: “If Facebook is made aware that a person has passed away, it’s our policy to memorialize the account. Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Memorializing an account also helps keep it secure by preventing anyone from logging into it.”  Managing a Deceased Person’s Account | Facebook Help Center

LinkedIn states: “Memorialized accounts allow a person’s legacy to remain on LinkedIn after they’ve passed away…. If you’re authorized to act on behalf of a deceased member, and have the required information and documentation, you can request to memorialize or close their account…. If you aren’t authorized, you can only report a member as deceased.”  Memorialize or Close the Account of a Deceased Member | LinkedIn Help.  LinkedIn will request “Legal documents to show you have the authority to act on behalf of the member.”

Google permits personalized legacy settings.  What Happens to Your Gmail Account When You Die? Here’s How to Control It (makeuseof.com)

[UPDATE: December 3, 2023 – – How to export data from Gmail and Google Drive for eDiscovery and compliance | Onna Technologies, Inc. – JDSupra]

If statutorily-mandated information is provided, a “custodian” of “digital assets” must disclose either the “contents” of communications or a “catalog” of them.  Under ET §15-606, a user or court can direct disclosure of the contents of electronic communications.  Unless the user prohibited disclosure of digital assets, under §15-607, “a custodian shall disclose to the personal representative of the estate of the user a catalogue of electronic communications sent or received by the user and the digital assets of the user, other than the content of the electronic communications….” [emphasis added].

Under ET §16-618, the statute applies to fiduciaries acting under a will or power of attorney, personal representatives, guardians, and trustees.  ET §15-608 and 15-609 cover powers of attorney.  Sections 15-610, et seq., address digital assets held in trust. Guardians of a protected person are addressed in ET §15-613.

Custodians may assess a reasonable administrative charge.  ET §15-605(d).  Milestones for custodian compliance are set in ET §15-615.  The statute provides good faith immunity for custodians.  A user cannot require a custodian to disclose user-deleted assets or make unduly burdensome requests.  ET §15-605(c, d).  The act does not apply to accounts accessed through an employer.

“Nothing is certain except for death and taxes.”  For those who wish to do so, planning under the “Fiduciary Access to Digital Assets Act” may be appropriate.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE:

How to Collect Slack Data for Ediscovery and Legal Holds (csdisco.com)(Dec. 8, 2023).

Doug Austin Reports on Google Export Feature Re: Hyperlinked Documents – E-Discovery LLC (ediscoveryllc.com)(Dec. 13, 2023).

My wife and I sponsored a Ukrainian family whose home and business were bombed and destroyed in Bakhmut.  They arrived here about a week ago under a U.S. government program.

I wanted to give them a Windows 10 computer; however, the Windows 10 “reset this PC” function did not work and I could not wipe my personal data.

I called Navid who immediately put me in touch with Kevin.  Kevin and Computer Services Limited graciously donated their services to fix the problem.  Thank you.

Because a book that Tom co-authored, “Electronic Discovery for Small Cases” (ABA 2012), has been on my bookshelf for a decade, I was thrilled to receive a copy of “Ediscovery for the Rest of Us,” published by Tom and Gulf Coast Legal Technology Center.

There is an old military saying that “any ship can be a minesweeper – – – once.”  Tom’s latest book shows general practitioners and business executives how to avoid the mines. For example, he discusses: ESI budgeting; do-it-yourself options; use of native files and phasing to reduce cost; and when a vendor or consultant is needed, and when one is not necessary.

The book is focused on the “small” case.  However, just like “minor surgery” has been described as “surgery on somebody else,” Tom points out that no case is “small” to those who are involved in it.  Tom espouses a “bull’s-eye” view of electronic discovery that is tailored to those cases.

Even in small cases, when there is e-smoke, there is good reason to expect an e-fire.[1]  Tom’s book is a “how to” guide to finding the fire and avoiding getting burned.  He uses Digital War Room a/k/a DWR as a teaching example.  It is a great program and I have also used it extensively.  It is perfect for the types of cases Tom addresses, and he succinctly explains that it is easy-to-understand, with a user-friendly interface.  He notes that it has multiple functions (including ingestion, de-duplication, processing, redaction, privilege log generation, and TAR capabilities), production tools, and offers reasonable pricing.  That is precisely the type of detailed and specific guidance that general practitioners need.  Tom also points to other options.

That segways neatly into Tom’s discussion of proportional search methodologies. In Tom’s words, “you cannot expect a 747 jumbo jet to be used as an effective or cost-efficient means of transporting commuters during rush hour traffic.”  Tom cogently emphasizes what he describes as an “overlooked” but “extremely significant” part of Sedona’s Cooperation Proclamation, and that is “the development of practical tools to facilitate cooperative, collaborative, transparent discovery.”  He adds that “I believe we need more discussion about those ‘practical tools’ which will promote the ability to cooperate.”  Tom’s suggestion is critical.  Abraham Maslow reportedly said that, “if your only tool is a hammer, then every problem looks like a nail.”  Tom’s focus on choosing among the many tools and finding the right one is spot on.

However, more is needed.  Even with a good tool, “smoking guns will not look like smoking guns in the files of someone who knows what he or she is doing.  Especially when they’re hidden in hundreds of thousands of documents.”[2]  Tom’s book provides the foundation that is a necessary predicate to efficiently finding the smoking gun. Tom begins his book with a historical description of how ESI developed in litigation and industry, covering Zubulake, the EDRM, the Sedona Conference, “information inflation,” Judge Grimm’s Mancia decision, and the watershed 2006 “ESI Amendments” to the Federal Rules of Civil Procedure, with the all-important Advisory Notes, as well as the important 2015 rules amendments.   History is important and Tom’s summary is condensed and informative.

But Tom’s book is also about process.  Good processes will avoid decisions stating that “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion. However, unlike a Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly.”  Coquina Invs. v. Rothstein, 2012 WL 3202273, at *1 (S.D. Fla. Aug. 3, 2012), aff’d, 760 F.3d 1300 (11th Cir. 2014).

Tom addresses the important of  processes, such as data mapping, and techniques like project management.  He poses Michael Quartararo’s key question of “What does ‘done’ look like?”  This is part of the project management lifecycle that Tom describes.  Importantly, Tom brings these important processes “down to earth” with concrete examples from Digital War Room.  My complaint about calls for “technological competence” is that they are frequently not accompanied by suggested ways to achieve that goal.  Tom’s book avoids that flaw.  He shows histograms, “who to whom” tables, issue coding, social network analysis, email threading, and production techniques in an affordable platform.

At its core, however, Tom’s key focus is on training the lawyer to: choose appropriate technologies; develop sound processes; and, implement them using checklists.  He asks:  “[W]hat is the average practitioner to do to effectively manage eDiscovery in small cases?”  In answering that question, Tom wrote:

“Always remember that technology is a tool and humans use tools, not vice versa.  The ultimate decision-making about what tool to use and how to use it resides with you, the attorney.  To that end, I would suggest that AI[3] should stand for ‘attorney intelligence.’”

Tom offers several non-technological but critical conceptual tools for legal professionals – think through your case and focus your discovery.  Meet early and often with opposing counsel.  Determine your needs  – do you need deleted data or metadata?  He carefully explains the use of phased discovery and sampling to reduce costs.  That is a critical and effective concept that, he explains, is too often overlooked.

In focusing on the lawyer and quoting John Martin, Tom writes that “it’s the archer, not the arrow.”  He adds: “To me, we are losing sight of the proposition that people are slow and computers fast, but people are smart and computers are dumb.”  Tom makes a novel argument that attorneys have an ethical duty to “supervise” computers that they use.

The checklist manifesto is based on the theory that we have so much knowledge and skill that we must use checklists to avoid missing key points and effectively deliver services.  Tom provides checklists that address every step in the process.  For example, in the section on “working with data,” he suggests checklists for using native files, controlling the data yourself, and, keeping data sets manageable by culling them.

If Tom’s advice is heeded, no future court will hear an attorney say, “I don’t even know what ‘native format’ means.” And no future court will have to respond: “You’ll have to find out. I know. Apparently [opposing counsel] knows. You’re going to have to get educated in the world of electronic discovery. E.S.I. (electronically stored information) is here to stay, and these are terms you’re just going to have to learn.” Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal. App. 4th 853, 859, n. 4, 160 Cal. Rptr. 3d 557, 563 n. 4 (Sept. 10, 2013).

Tom’s book is titled ESI “for the rest of us.”  Its focus is on the general practitioner who is not already steeped in the intricacies of ESI.  That is an important audience: “It is no longer amateur hour. It is way too late in the day for lawyers to expect to catch a break on e-discovery compliance because it is technically complex and resource-demanding.”  DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 942 (N.D. Ill. 2021), quoting Donald R. Lundberg, “Electronically Stored Information and Spoliation of Evidence,” 53 Res Gestae 131, 133 (2010).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

—-

[1] L. Zubulake, Zubulake’s e-Discovery (2014), 44.

[2] James Layton, Esq.

[3] “Artificial Intelligence.”

The Standing Committee on Rules of Practice and Procedure issued a supplemental report on December 12, 2022, to adopt new Rule 1-101.1.  The Committee Note states:

There are hundreds of references to the former names of those courts throughout the Maryland Rules, and the process of updating those references to conform to this Rule is underway

The new Rule clarifies terminology in the Maryland Rules.  The proposal states:

In these Rules, wherever the term appellate court appears with initial capital letters [“Appellate Court”], the term means the Appellate Court of Maryland. Wherever the term appellate court appears with lower case initial letters [“appellate court”], the term, as applicable under the circumstances, may refer to any court that is exercising appellate jurisdiction.

The new rule, however, does not address citation issues.  For example, if a brief or legal memo refers to a 2021 decision, should the issuing Court be referenced as the “Court of Appeals of Maryland,” the title when the decision issued, or the “Supreme Court of Maryland,” the Court’s new name?  One clue may be found on the Court’s website.  There, where older reports were submitted to the Court of Appeals, the website now states “Submitted to the Supreme Court.”  For example, the 176th Report of the Rules Committee, dated April 5, 2013, was submitted to the “Supreme Court.”

UPDATE:

The January 30, 2023, 214th Report of the Standing Committee on Rules of Practice and Procedure states: “By the time this Report was written and filed, the Constitutional Amendments changing the names of the two appellate courts to the Maryland Supreme Court and the Appellate Court of Maryland, respectively, had taken effect, so we have used those names to match what will be in the Rules. When addressing historical matters – where a Rule came from, for example – we have used the name of the Court at the time.” [emphasis added].

Plaintiffs, a mother and her son, were injured in an auto accident.  The driver’s insurer denied coverage, asserting that the car was a “hack,” that is a car for hire, which was uninsured.[1]

Plaintiffs contended that the driver was an “acquaintance” and claimed that:

He gave Mom and Son a ride so they could shop for groceries. They gave him… $10 so he could buy some lunch and, during a stop on the way home, a snack at a pharmacy. There was no evidence that Mom and Son offered him anything more.

Plaintiffs sought to recover the entire $30,000 policy.

But, their testimony was impeached:

So the jurors were not convinced that the guy’s Ford Escort had been transformed into a hack. But no juror was happy with the testimony, either. When presented with transcripts of answers they had given in depositions long before trial, Mom and Son, as well as the alleged hack, denied just about everything they had said. That got to be pretty strange; it made us less sympathetic toward Mom and Son and cut into what we thought they deserved.

Id. (emphasis added).  The jury “awarded them about $11,000 in medical expenses and something extra for time, inconvenience and stress, a total of $14,383 between them.”  Id.

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[1] In the Baltimore Sun article, a “hack” is described as “Baltimore’s unique informal transportation system” with historic roots in “Black exclusion in public transit.” Mr. Rodricks wrote: “Those who use hacks might not own cars or have a driver’s license. They might not have time to wait for a bus, might not have a credit card for an Uber or Lyft. They might have a disability. They might be standing in the rain.”

I don’t know any of the facts of that case and therefore don’t comment on it.

In connection with the Sedona Conference’s Cooperation Proclamation, Kenneth J. Withers, Esq., wrote of “a litigation culture of ‘fierce warriors’ gone haywire.”  “When E-Mail Explodes,” San Diego Lawyer, Nov.-Dec. 2008 at 36-38.  “Discovery practice, long thought to be the most contentious and unprofessional aspect of litigation practice, is plagued by the  conventional ‘wisdom’ that during discovery a lawyer should stall, obfuscate, contest all discovery sought and produce only what cannot be withheld.” The Hon. P. Grimm, et al., New Paradigm for Discovery Practice: Cooperation, 43 Md. B. J. 26, 27 (2010).  These “war of attrition” practices threatened to close the court house doors to litigants of moderate means. See id. at 28.

In Maryland, the duty to cooperate dates back at least to a 1941 law review article.  See Michael D. Berman and The Hon. Paul W. Grimm, “The Duty to Cooperate in Discovery,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n.2020),  319-20 (citation omitted).

A 2014 You Tube video, Verbatim: What Is a Photocopier? | Op-Docs – Bing video, by Brett Weiner, provides a wonderful example of what not to do.  “When you say photocopy machine, what do you mean?…. There’s different types of photocopy machines…. It’s not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, [or] that uses scanning technology.”[1]

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[1] The video “re-produces the dialogue contained within the transcript exactly,” however, there is artistic license by the actor.  Hilarious transcript of lawyer’s argument with witness over definition of a photocopier is turned into a short film – Legal Cheek (Apr. 30, 2014).  The cited blog reproduces the transcript.