United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

This case, which arises from allegations of pay discrimination by New Mexico State University (“NMSU”) based on gender, in violation of Title VII, serves as an important reminder that all counsel – irrespective of one’s computer know-how – understand their ESI obligations and cooperate in good faith with opposing counsel when engaging in the process of retrieving electronically stored information (“ESI”).

BACKGROUND

In this pay discrimination case, the United States alleged that NMSU paid a female employee less than her male counterparts, although they were performing similar responsibilities for NMSU’s track and field program.  During discovery, plaintiff sought production of documents reflecting communications regarding her compensation; production of documents regarding her complaints concerning her pay; and production of documents regarding any other complaints of pay discrimination made by other coaches, trainers, etc.  Eventually, disputes arose over NMSU’s responses to plaintiff’s discovery requests and the United States filed a motion to compel.

In response, NMSU detailed the “more than 20” keyword searches it conducted (without conferring with plaintiff’s counsel) to locate documents responsive to the plaintiff’s requests.  Thereafter, the United States identified what it perceived to be inadequacies and deficiencies in NMSU’s searches notwithstanding the 14,000 pages of documents produced.  Before the Court could resolve the issue of the adequacy of searches, NMSU moved for a protective order to preclude further searching for responsive documents.

DECISION

Citing defense counsel’s failure to “adequately confer” before performing keyword searches that were “inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order NMSU to conduct additional searches with specific terms.  The Court found defense counsel’s failure to confer with its adversary particularly troubling as “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.”

Here, the failure to adequately confer in good faith was the very reason for the inadequate searches.  The Court went on to observe:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

[Citation omitted] [emphasis added].

CONCLUSION

While this decision does not actually state that counsel must disclose their ESI search terms to opposing counsel, it comes pretty darn close.  By commenting that transparency in all aspects of ESI preservation and production is necessary, this decision effectively obligates counsel to discuss with opposing counsel the intended search terms before executing on those terms.  Indeed, collaboration and cooperation are again held to be central to one’s discovery obligations.  And, here, counsel’s failure to meet and confer and engage the adversary in that process resulted in counsel earning the expensive right to repeat the process – this time with judicial weigh-in.  Perhaps equally important of a take-away from this decision – counsel’s lack of computer savvy does not extricate counsel from the obligation to understand one’s e-discovery obligations and attain competency in technological advances relevant to litigation in today’s E-centric world.

In Fulton v. Livingston Financial LLC, 2016 WL 3976558 (W.D. Wash. July 25, 2016), U.S. District Judge James L. Robart sanctioned a defense lawyer who “inexcusabl[y]” relied on outdated case law and pre-2015 amendments to Federal Rule of Civil Procedure 26(b) in motion practice before the court.

On April 13, 2015, Plaintiff (Richard Fulton) filed suit against Defendants for allegedly violating the Fair Debt Collection Practice Act (“FDCPA”) 15 U.S.C. § 1692, et seq., and several Washington statutes.

On March 17, 2016 (after the Federal Rules were amended), Defendants moved to either compel discovery or exclude medical evidence presented by Mr. Fulton. Specifically, Defendants argued that Fulton “stated on numerous times since the beginning of this case that he was not seeking recovery for any medical condition, so his medical records and treatment were not in issue.”* Judge Robart found defense counsel’s inference “so unreasonable as to constitute a misrepresentation to the court,” as the plaintiff did seek recovery for emotional distress. Id. at *6, *8. More important to this Blog post, however, was Judge Robart’s finding that defendant’s counsel had “misstate[d] the law” regarding discovery by citing cases analyzing pre-amendment Rule 26. Id. at *7. And further finding, defense counsel proceeded to misstate the law in their reply brief continuing to rely upon case law that existed before the highly publicized amendments that took effect December 1, 2015. Judge Robart declared that such citations to outdated case law were “inexcusable” and “inexplicable.” Id. at *7, *8.

Judge Robart then proceeded to sanction defense counsel in an oral ruling. In addition to awarding Fulton his fees and costs incurred in litigating the motion, Judge Robart ordered defense counsel to provide a copy of his offending motion to the supervising members of his firm, with the explanation that the court had entered sanctions against him “for quoting provisions of the civil rules that are badly out of date, and also making direct misrepresentations to the court.” Id. at *8. Judge Robart also threatened an additional sanction of requiring defense counsel to report this sanction on future pro hac vice applications. Id.

Before determining whether to require counsel to report the sanction on future pro hac applications, defense counsel filed a supplemental memorandum in response to the court’s oral ruling, stating that he had acted in good faith and noting that his conduct did not affect the administration of justice in the case. For these reasons, defense counsel requested that the court exercise its discretion in not taking disciplinary action or, in the alternative, limiting the disciplinary action to an informal, private admonition that would not need to be reported on future pro hac vice applications. Id. As the defense counsel’s memorandum was not denominated a motion for reconsideration, Judge Robart declined to reconsider his oral ruling and instead considered only whether to impose the additional pro hac vice reporting sanction. Id. at *8.

Judge Robart rejected as “post hoc speculation” defense counsel’s claim that because pre-amendment Rule 26 could have applied “insofar as just and practicable,” his citation to pre-amendment cases was in good faith. Id. The court held that by relying on pre-amendment cases in an argument on discoverability and making “no reference to the proportionality requirement,” counsel “misrepresented the scope of discoverable information in a motion to compel or exclude evidence” and then failed to “own[] up to his misrepresentation,” which was “tantamount to bad faith.” Id.

In conclusion, Judge Robart noted that despite [defense counsel’s] flawed efforts to excuse his comportment, the previously issued sanctions (i.e., providing a copy of offending motion to supervising members of firm and awarding plaintiff his fees and costs in litigating this motion) “nearly suffice” to deter counsel from misrepresenting facts or the law in the future and thus decided that counsel did not need to report the sanctions on future pro hac vice applications. Id. Judge Robart did add, however, an additional sanction, requiring counsel to disclose the sanctions imposed if, at any point in the next five years, a federal court threatened or imposed sanctions on him. Id. In Judge Robart’s view, “[t]his requirement will alert courts presiding over future cases that [defense counsel’s] misrepresentations in this case constitute strikes one and two against him. Future courts will then be sufficiently informed to properly sanction any further bad faith by [defense counsel].” Id.

This case serves as an important reminder of our obligations to remain current with and conversant in an organic and evolving body of rules and decisions.

*This conclusion was based on Fulton’s statements that “he did not seek formal medical treatment for stress, worry and inconvenience brought on by Defendants’ conduct.”

 

Today’s post draws upon countless other recent articles and blogs and their respective predictions regarding, what’s in store for 2016 when it comes to e-discovery.  I have tried to synthesize below, the steps that I believe every litigator should embrace for the coming year.

First, learn the new rules of civil procedure. The amended Federal Rules of Civil Procedure took effect in December 2015.  As you all likely know by now, the new rules emphasize cooperation and proportionality.  Specifically, the amendments require lawyers to better understand best practices for complying with and participating in their discovery obligations especially in the “E” world (i.e., electronic).  With the change in Rules, it is inevitable that the federal decisions will begin to discuss and interpret these rules.  We, as lawyers, need to follow and digest those decisions and interpretations and make certain that our client’s do what is necessary to comply with the new Rules and the decisional law on point.

Next, economize without jeopardizing defensibility. Any attorney responsible for a case that involves a large document collection/review/production component has inevitably heard complaints from clients about the cost of that component of litigation.  There are, however, ways to defensibly contain costs (i.e., limiting custodians, utilizing key word searches, restricting time frames, utilizing contract attorneys for review, deduplication, deNYSTing, early cases assessment, data analytics…).  However, if 2015 taught us anything it was that federal judges in our Circuit are embracing technology assisted review.  Look no further than Magistrate Judge Peck’s decision in Rio Tinto PLC v. Vale S.A., (See Magistrate Judge Peck’s Recent Decision on the Use of Predictive Coding and the Cooperative Obligations Involved ) where he endorses this advancement as one of most efficient ways to efficiently review a large volume of data. Judge Peck commented “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it”…and “predictive coding [is] widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden.”  Consider technology assisted review if you need to stay within your litigation budget on high volume cases.

Third, Stay Abreast of Advances in Technology. As mentioned in past blog posts (See blog Will New York Follow California’s Lead) a number of state ethics opinions and rules are now emphasizing the need for lawyers to possess competence in technology.  Specifically, lawyers must demonstrate knowledge of techniques for handling electronically stored information in discovery. At least one federal court has cited California’s formal ethics opinion, suggesting attorneys “should be able to perform” various eDiscovery tasks, including preserving, identifying, collecting, and producing data (either on their own or with guidance of e-Discovery specialists or counsel).  I suspect other courts are not far behind.  So…no time like the present to get comfortable with e-discovery demands and technology.

Fourth, Understand How Your Corporate  Client’s Employees Create and Store Data. I need look no further than my eleven year old to realize I don’t understand the latest devices and apps, or the vast amount of data he can create on those devices and apps.  Now, imagine that volume potential on the corporate level! We can no longer take comfort that we collected data from servers, laptops, and mobile devices.  Instead, your collection plan must identify any potentially relevant data that exists in atypical formats including, for example, social media (snapchap, facebook, Instagram, etc.), text messages, the cloud, ….Then, our plan must assess how to preserve this information and whether collection is necessary.

Fifth – and Definitely Not Finally — Everyone Should Think About Cyber-Security. With the Cybersecurity Information Sharing Act of 2015 signed into law in December, cybersecurity is no longer just an issue for one’s information technology team.  We, as attorneys, must prioritize efforts to make sure our corporate clients are preparing for a potential data breach and informing their employees of steps to take that may safeguard their data.

Earlier this summer, the California State Bar formally addressed the ethical obligations of counsel to be competent in matters of e-discovery and specifically established standards for counsel practicing in California.  (Formal Opinion No. 2015-193).  The Bar stated, “[e]lectronic document creation and/or storage, and electronic communications, have become commonplace in modern life…attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. A lack of technological knowledge in handling ediscovery may render an attorney ethically incompetent to handle certain litigation matters involving ediscovery, absent curative assistance.”  The Opinion went on to note that an attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

Although the State Bar’s Opinion is advisory only, it provides much needed structure in a field that has historically been faced with varied interpretations and even more varied levels of competence in the field.  Set within the parameters of a hypothetical bar exam question, the Opinion went on to discuss the 9 defined skills that attorneys should be able to perform in ediscovery (either “by themselves or in association with competent co-counsel”):

  1. Initially assess ediscovery needs and issues, if any;
  2. Implement/cause to implement appropriate ESI preservation procedures;
  3. Analyze and understand a client’s ESI systems and storage;
  4. Advise the client on available options for collection and preservation of ESI;
  5. Identify custodians of potentially relevant ESI;
  6. Engage in competent and meaningful meet and confer with opposing counsel concerning an ediscovery plan;
  7. Perform data searches;
  8. Collect responsive ESI in a manner that preserves the integrity of that ESI;
  9. Produce responsive non-privileged ESI in a recognized and appropriate manner.

Irrespective of whether the New York State Bar follows California’s lead, it is nonetheless critical for practicing attorneys (litigators in particular) to understand the intricacies of the ediscovery landscape and our many obligations in this area.   Ultimately, attorneys’ obligations evolve as new technologies develop and become integrated with the practice of law. Make sure you are staying up to speed!