Dancing 'Geek to Geek' - Judges' Panel Weighs in on California AB 5, 'Train Wrecks' and the 'Mayflower'

If this keeps up, I'm going to rename this site the 'Hot Potato' blog...

I've posted ad nauseam about how parties want to rid themselves of the e-discovery hot potato, but throwing it to the Judge?  Not so fast, says the Hon. Andrew J. Wistrich.  You can try, but he won't play the game!  That was one of the morsels from the Judges' Panel, which also included the Hon. Maureen Duffy-Lewis and the Hon. Carl J. West.

I like Judges.  They're always more candid than I expect, and as some of you have probably figured out from my prior writing, I like candor.  Don't beat around the bush, don't use fancy language, just tell me what you mean!  I certainly got a lot of that from this panel.  It was the best 75 minutes a person interested/involved in e-discovery could spend, because it tells us where things are headed in the minds of the Judges - and ultimately, they're the ones we are speaking to, not only our adversaries.

What was the most important concern to the panel?  Cost!

Judge West lead off the discussion and to my delight, he immediately weighed in on California AB 5, noting the pending March 3rd hearing and saying he expects the Bill to be adopted either by late this quarter or the next.  My take?  California finally reached a budget deal, so we'll see if that development facilitates the passage of AB 5.

Judge West was concerned about two seemingly-contradictory provisions in the Bill; one, which discusses imposition of sanctions, and the other, which defines Safe Harbor.  He noted there were several exceptions to Safe Harbor that might incur sanctions.  That reminded me of law school.  As my professor used to constantly warn, "Everyone knows the rule, but they'll test you on your knowledge of the exceptions to the rule".

He also mentioned that more and more, he's seeing each party provide a technology expert at hearings, and that many times it becomes an 'expert versus expert' issue.  That's when he coined the phrase, credited to another Judge, that the parties should have their respective experts 'dance geek to geek'.  I just want the Judge to know I haven't worn horn-rim glasses since grade school...

Judge Duffy-Lewis spoke next...

She's involved with what we refer to in California as 'Fast Track', but she came right out and said it; e-discovery hearings in her courtroom sometimes resemble "train wrecks".  She said this occurs because she doesn't see cases until they're 90 days out and many of the lawyers wait to file motions until their case is about to be heard. 

She would like to see attorneys dive right in as soon as possible and not wait.  They should begin submitting motions early related to issues of privilege, preservation and notice.

A major issue is how to handle privileged documents.  For example, I don't want to turn over to the other side a document that contains information I'm going to use to impeach my adversary.  That's easier when you're talking about a paper document, but not so easy when the particular statement you need is buried in a 20-page email thread between multiple custodians that contains other relevant statements. 

Judge Duffy-Lewis' solution was to create something called an Impeachment Log.  The attorneys submit the documents to her, then she makes the determination, preserving the privilege.  Brilliant!

What does she see in the future?  Recommending a status conference will become virtually mandatory for e-discovery issues, and she predicts the appointment of special masters will become more prevalent.

Judge Wistrich completed the trifecta.  Talk about candor!  He's a Magistrate Judge of the U.S. District Court for the Central District of California (I'm a member also) so his was the Federal view.

Judge Wistrich didn't mince words.  He said the "rules have helped, but haven't solved the problem."

What problem?  The adversarial system and the natural tension created by asking parties - that by virtue are required to keep things close to the vest - to break that habit to cooperate on e-discovery issues.  He said the parties are going to have to get around that problem because in many cases, the experts are going to ask for - and be granted - access to their adversaries' data.

He also said he's "uncomfortable" because, "I'm not sure I know enough", and is "concerned" that e-discovery is going to end up adding another layer - experts - to the front-end of the process, further bogging it down.

Still, like Duffy-Lewis, he says attorneys had better be prepared to take the pro-active approach.  He clearly understands his role and will not let the parties try to shift decisions to the bench that don't belong there.

He also discussed Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D.Md. Oct. 15, 2008) and its effect on Rule 26(g).  I wasn't surprised that Chief Magistrate Judge Paul W. Grimm would be cited at the conference, since he's one of the pioneers in this area.  Wistrich said that, when faced with issues of good faith, he orders the parties to videotape all further meet & confer discussions.  Strangely, he noted, their behavior improves immediately.

Bravo!

Comments

[joe golden]

AB5 is sailing through. It affects anyone who represents a client that may be involved in litigation. If anyone sees any problem they should make it known to the appropriate legislators or waive any right to whine about it now or later. Did you or your bar association review and comment on it as it sailed through the Judicial Council process?

[joe golden]

E-discovery: early attention and judicial control.
Early attention and continuing status conferences are the long recognized yet neglected solution to many discovery problems. The need and value increases greatly when dealing with ESI. Lawyers, courts and particularly clients cannot permit neglect and delay to allow little issues to fester and grow into gigantic and expensive solutions---unless their strategy is to run up costs. Under existing Calif rules, neither parties nor courts need wait 90 days before seeking judicial guidance from the judge or discovery referee.

[Perry L. Segal]

Hi Joe:

Thanks very much for writing. Not sure if I would agree with your categorization of "sailed through" considering what happened with AB 926, but in principle, I agree with the rest of your points. This should not be a reactive situation - that's what my blog is all about. Personally I'm pretty satisfied with the proposed rules and have discussed them offline with a member of the Judicial Counsel.

Further to that, both the California Bar Association and the Los Angeles County Bar Association (I'm a member of both) have publicly supported the Bill.

[Perry L. Segal]

Joe - again, very prescient comments. The Judge was certainly pointing the parties in that direction to keep them on the 'Fast Track' to avoid a 'train wreck'.

Of course there's another reason why parties might delay - lack of experience with the e-discovery process. The initial reaction to unfamiliar territory is usually inaction. I think that accounts for a large percentage of the problem cases as well.

NOTE - if AB 5 does become law, I intend to do an in-depth analysis, contrasting it with the Federal Rules. There are some stark differences.