Hey, I’m always ready to listen to any argument that suggests that downward pressure on contract attorney rates is misguided. In a post today, Richard Stout from Counsel on Call points out that once you’ve gotten away from the inflated law firm rates, other issues become more important than squeezing that last dollar from your reviewer’s pay rate.
I am a member of a couple of working groups related to the Electronic Discovery Reference Model. One is an ongoing project trying to keep up with changing standards in document review. I’m supposed to come up with language describing recent trends in resource considerations.
Basically, this is going to be a description of issues and trends in management, human resources and physical resources as they relate to document review.
Many of the members of EDRM are vendors and/or law firm representatives. I am one of few individual members, and I want to represent the interests of the contract attorney in the process. One thing that I really want to hit on is to bring the contract attorney perspective to the process. If you check out the current version of what the EDRM has related to this issue, you can see that it’s put together pretty much from the perspective of the large law firm and the large vendor.
As an example, the first paragraph of the Review Environment, Communication and Technical Support section states:
Depending on the needs of the case, a centralized location for the review may be set-up. It is equally acceptable for the review team to work remotely or within their individual offices although this may require a greater need for internal communication protocols. In any case, the review environment should be well lit, be free of distracting outside noise, and be positioned so that no unrelated foot traffic runs through the area.
If this fits your document review situation (toss up whether you use your individual office or work in the same room with the other attorneys) then I guess I don’t need much additional input. If, however, your review experience was a little different (foot traffic, insect traffic, no windows, smells, crowding, uncomfortable chairs….) then please give it some thought and let me know what you think should be a part of a standard set of considerations when putting a document review together.
Now, there’s a Federal Rule of Evidence 502.
The text of the rule can be found here, but the main gist of it is that inadvertent disclosure does not automatically mean waiver in Federal Court any more. Ediscovery guru Michael Arkfeld says the new rule applies to all actions commenced after the date of enactment and on pending actions if “just and practicable.” That may mean any litigation you’re working on right now!
We were a little worried about this one because most procedural rules passed by the Supreme Court go into law if Congress does nothing. This one, since it “creat[es], abolish[es], or modif[ies] an evidentiary privilege” had to be approved by both houses of Congress. See 28 U.S.C. § 2074(b)
This affects the document review profession by providing a little bit of sanity where there was once abject terror at the thought of letting slip some small bit of privileged information. Where before, an accidental production could cause waiver of large swath of privileged communication, the new rule will hopefully bring a bit of reason to the process.
Now we have an opinion interpreting the rule. In the case of a litigant who, it can be said, was rather lax with it’s treatment of privilege (let a vendor run some searches then filter for keywords and produce without review) the Court found no waiver.
I was listening to a commentator the other day say that the issues raised in the recent Qualcomm case were isolated in the sense that they were not likely to happen very often in the real world and could be explained by the circumstances of the case including various factors such as:
First - It was a patent case, and patent litigators are a very cut-throat lot when it comes to litigation.
Second - It happened during the heat of the trial and was not a decision made in the cool and calculating world of pre-trial discovery.
A word about Qualcomm if you don’t know the facts. While the fight continues, (and goes on and on and on…now the sanctions against the attorneys have been reversed and remanded so they can use the “self defense” exception to privilege to defend themselves against Qualcomm’s self serving declarations) the Qualcomm was ordered to pay over $8 million for “monumental and intentional” discovery violations.
Qualcomm failed to produce tens of thousands of documents requested in discovery and six of Qualcomm’s outside attorneys “assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate.”
Unfortunately, the attorneys “then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.” The Court then set out an entire program for the parties to follow to ensure that the problem was corrected and wouldn’t happen again.
I don’t know about you, but I’ve been involved as a contract attorney in document reviews where questionable decisions were made. Some were more egregious than others. I imagine there’s still a legal team out there who may want to print out electronic documents to paper to give to the other side. Maybe there’s a legal team out there who thinks it’s a good idea to look through email and produce only responsive documents without regard to their sources or attachments.
Have you seen a recent example of a decision in a document review that could possibly lead to a Qualcomm type situation in a later courtroom showdown? Let’s try to keep this anonymous.