“The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference

“The Checklist Manifesto: How to Get Things Right,” by Atul Gawande, M.D.,[1] is a fascinating analysis of the history and uses of checklists.

In a nutshell, the thesis is that there are many areas where we have sufficient knowledge to solve problems; however, we fail to apply it correctly.  “Getting the steps right is brutally hard, even if you know them.” Id. at 10. Dr. Gawande explains:

Here, then, is our situation at the start of the twenty-first century.  We have accumulated stupendous know-how.  We have put it in the hands of some of the most highly trained, highly skilled, and hardworking people in our society.  And, with it, they have indeed accomplished extraordinary things.  Nonetheless, that know-how is often unmanageable.  Avoidable failures are common and persistent…. And the reason is increasingly evident: the volume and complexity of what we know has exceeded our individual ability to deliver its benefits correctly, safely, or reliably.  Knowledge has both saved us and burdened us.  That means we need a different strategy for overcoming failure, one that builds on experience and takes advantage of the knowledge people have but somehow also makes up for our inevitable human inadequacies.

Id. at 14 (emphasis added).

Dr. Gawande’s solution is the checklist:  “The knowledge exists.  But however supremely specialized and trained we may have become, steps are still missed.” Id. at 31.  A checklist helps avoid missing critical steps.

Dr. Gawande provides many interesting examples. I will focus on only two.

First, the rocker David Lee Roth insisted that Van Halen’s contracts with concert venues include a clause requiring a bowl of M&M’s, with every single brown candy removed. Id. at 79. Because the band was traveling, the contract imposed many other requirements on each venue, and the M&M clause was buried in paragraph 126.  Mr. Roth said that, if he saw a brown M&M in the bowl, he knew that all of the other specifications needed to be carefully inspected.  The M&M clause provided a checklist to remind everyone of the minimum necessary steps.  Id. at 36.

Second, in 1935, with World War II approaching, the U.S. Army Air Corps had a competition to build the next-generation long-range bomber.  Martin, Douglas, and Boeing, submitted entries.  Boeing’s airplane could carry five times the bomb load and fly faster and farther.  It was dubbed the “flying fortress.”

During a demonstration for the Army, the Boeing plane taxied down the runway, took off, swerved, and crashed.  “Pilot error” was listed as the cause.  The sophisticated, four-engine plane required a pilot to follow many steps to fly it properly, and the test pilot forgot to release a locking mechanism.  A newspaper deemed it “too much airplane for one man to fly.”

Nevertheless, given its many advantages, some were convinced that it was flyable.  A group of test pilots looked for a “fix.” However, their solution was not more or longer pilot training.  “Instead, they came up with an ingeniously simple approach: they created a pilot’s checklist…. [F]lying this new plane was too complicated to be left to the memory of any one person, however expert.”[2]

Using checklists, the “flying fortress” went on to fly 1.8 million miles without one accident. Id. at 34. It gave the Army Air Corps a decisive advantage in World War II.

Dr. Gawande discusses checklists for routine matters that are easily overlooked and also for extraordinary situations.  He also discusses the use of checklists to create a team approach by requiring communication among the participants.

Communication is, of course, central to the successful handling of electronically stored information (“ESI”) in civil litigation.

The conduct of both counsel and client thus calls to mind the now-famous words of the prison captain in Cool Hand Luke: “What we’ve got here is a failure to communicate.” Because of this failure by both UBS and its counsel, Zubulake has been prejudiced. As a result, sanctions are warranted.

Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 424 (S.D.N.Y. 2004)(emphasis added).  “I advised counsel that the dispute appeared to be one that could be resolved, or substantially minimized, by greater communication….”  Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 356 (D. Md. 2008). “Both sides could have avoided the problems that have occurred by communicating with each other….”  Classic Soft Trim, Inc. v. Albert, 2020 WL 6734369, at *7 (M.D. Fla. June 15, 2020).

Lawyers have long used checklists.  For example, “Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific [or any other] expert testimony.”  In re Marriott Int’l, Inc., Customer Data Sec. Breach Litig., 2022 WL 1323139, at *4 (D. Md. May 3, 2022).[3]

In fact, Tom O’Connor, Jeremy Greer, and Michael Quartararo recently prepared an excellent ACEDS eDiscovery Checklist Manifesto.  They wrote that: “A good checklist is designed to be your guide in forming a consistent, repeatable process.” Their e-discovery checklist is based on the EDRM. Their goal is to include a checklist associated with each stage of an e-discovery project.  As Craig Ball correctly noted, it is a “splendid work.” Did You Miss Tom’s Checklist Manifesto? | Ball in your Court (craigball.net) (Oct. 1, 2021).

One area of ESI practice that can benefit from checklists is the “meet and confer” under Fed.R.Civ.P 26(f).  Rule 26(f)(2) provides that: “In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”  Further, it leads to a “discovery plan” that, under Rule 26(f)(3), must state the parties’ view and proposal on:

(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;

(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

This wide-ranging and important process is tailor-made for Dr. Gawande’s checklist approach.  There are “routine” issues that are complicated and complex, but which cannot be overlooked or missed.  There are also unexpected or “non-normal” issues that may arise. For example, in a Rule 26(f) conference:

• It may be necessary to discuss how to define how are cells in spreadsheets treated?  Sheets in a workbook?  Text bubbles and related context? Hyperlinked documents? What is a Document? (Part III);
• The scope of redactions may be an important topic for discussion. Relevance Redactions Rejected – Rule 26(f) Resolution;
• Another topic may be Does Rule 34(b)(2)(E)(i) Mandate “Document Correlation” When ESI is Produced and, If So, Does Metadata Provide a “Work-Around” to Avoid the Costs of That Correlation Process?;
• Non-forensic downloading of social media sites may be an area for negotiation, District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data;
• The scope of discovery of social media could be discussed, District of Maryland Applies Narrower Scope of Discovery of Social Media in “Garden Variety” Emotional Distress Cases and District of Maryland Clarifies Rules Governing Discovery of Social Media;
• Discovery of Steps Taken to Implement a Litigation Hold and disclosure of litigation hold notices may be negotiable;
• The form of a privilege log, Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun, as well as drafting issues, Categorical Privilege Log Presented Interpretive Issues could be significant;
• Discovery of “channels” in collaboration software, Beyond Email – Slack, “Channels,” and Expert Testimony may be a negotiating topic;
• Document Unitization may have important consequences;
• Self collection methodologies may be negotiable, Maker’s Mark: A Different View of Self Collection, Unsupervised Self-Collection Predictably Led to Problems, and Rule 26(g) Sanctions for Failure to Supervise Document Collection and Review;
• When Should a Spoliation Motion Be Filed and Decided?;
• Because possession, custody, and “control” may present definitional issues, The “Practical Ability” Standard for “Control” in Maryland may be important;
• Secondary Evidence as a “Gap Filler” could be a discussion topic;
• It may be important to discuss When Does a Litigation Hold End? and The Duty to Preserve Continues Even After Production of Social Media;

A Rule 26(f) conference of the parties is too complex to be left to the memory of any one person.  If we accept Dr. Gawande’s view, checklists serve to “remind us of the minimum necessary steps and make them explicit.” Id. at 36.  “The knowledge exists.  But however supremely specialized and trained we may have become, steps are still missed.” Id. at 31.  “The Checklist Manifesto: How to Get Things Right,” is worth a look.

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[1] The book is published by Picador (2010).

[2] Dr. Gawande describes these events on pages 32-34.

[3] For other checklists, see, e.g., Paul Mark Sandler, “When filing a complaint, read the rules – and this checklist” (The Daily Record Sept. 12, 2019); S. Nelson, et al., The Electronic Evidence and Discovery Handbook: Forms, Checklists, and Guidelines (ABA 2006); Craig Ball, “The Path to E-Mail Production II, Revisited” (June 20, 2015)(discussion of an email preservation checklist); P. Grimm, “Maryland Evidence Checklist” (MICPEL 1989)(Judge Grimm provided “brief” checklists, as “a practical tool intended to be helpful in court”); Michael I. Quartararo, “Project Management in Electronic Discovery” (eDiscoveryPM.com 2016); Exterro, “The Comprehensive Guide to E-Discovery Preservation (2^nd ed. 2019), Apx. A (preservation checklist); Exterro, “5 Questions to Ask During Identification for Smart Preservation: A Doing More Before Review Checklist” (Exterro White Paper 2016); Principles for the Discovery of Electronically Stored Information in Civil Cases, District of Maryland, Apx. 1 (“Suggested Topics for ESI Discussions”).