Under the amended Federal Rules of Civil Procedure, litigants are required to meet and discuss a number of issues associated with the exchange of discoverable documents and information, including preservation and production of electronically stored information ("ESI"). However, while the Rules can compel parties to have a conversation about specific topics, they cannot force parties to agree on any of these areas. Accordingly, for every meet and confer session that resolves key disputes about ESI production, many more end without agreement and simply serve as a rehearsal for the arguments that will be repeated to a judge.
Lawyers may believe that they are acting in their clients' best interests when they refuse to move from their preferred position in the meet and confer process, but pushing discovery-related disputes to judicial resolution can carry some significant risks. First, of course, a judge may have independent ideas about discovery, particularly electronic discovery, that match neither side's preferences. Once these are entered in an Order, there is far less ability (or desire) for the parties to renegotiate these terms. Second, a Court Order carries more authority than an agreement between the parties, and litigants that do not comply with these obligations risk greater legal penalties than non-compliance with less formal agreements with opposing counsel. Finally, having a Court memorialize each side's bargaining position in a formal Order (or Opinion and Order) makes is possible that a lawyer's client develops unwanted notoriety in the e-discovery realm as the opinion is distributed and read nationally.
A recent Georgia case, Williams v. Taser International., 2007 WL 1630875 (N.D. Ga. June 4, 2007) demonstrates the downside risks for a producing party that has been unwilling to move from its preferred discovery position. The case was filed before the December 1, 2006 effective date of the amended Federal Rules of Civil Procedure, and the lawsuit was not subject to the mandatory early e-discovery meet and confer requirements now required in federal cases. Instead, long into the active discovery period, plaintiff and defendant continued to argue over the production of e-mail messages retained by Taser without reaching any meaningful agreement. While the parties apparently did not dispute the historical time period to search, they could not find common ground with respect to search criteria for identifying potentially relevant documents or a methodology for producing the materials to the requesting party on a time schedule.
Faced with the need to move the case forward, Judge Richard Story finally ordered the parties to meet and confer on these issues and present a search and review protocol for his approval. Not surprisingly, the parties failed to move from their respective positions, and they presented two entirely dissimilar protocols for the Court's approval.
In his Order, which contained extensive discussion of the Court's reasoning, Judge Story found both side's proposals "deficient." And, rather than permit the litigants to further bicker over these issues, the Court imposed a fairly sophisticated (though well-tested) protocol to settle the dispute. The Court ordered defendant Taser to run twenty-one (21) specific searches to identify a collection of "presumptively responsive documents." Taser then had thirty (30) days from entry of the Order to produce all such documents and forty-five (45) days to complete any associated privilege review of these documents and produce a comprehensive privilege log to the requesting party. Taser was barred from excluding presumptively responsive documents from the production on any grounds other than privilege. And, though the Court's language opened the door for future wrangling on its exact meaning, the documents were ordered to be produced in a "searchable, electronic form."
Adding further insult to injury, three weeks after entry of the Order, Taser was forced to apply for partial relief from the Order on grounds of technical impossibility, when it determined that its search technology could not conduct some of the Court-ordered queries. Mercifully, neither Taser's opposing counsel nor its co-defendants opposed the motion, which was granted shortly after it was filed (and only days before the thirty-day production deadline).
Key Lessons For The Practitioner
The Williams Order offers cautionary guidance to lawyers who are unwilling to move in any way from the e-discovery strategy that they believe is most favorable to their clients. First and foremost, attorneys should never underestimate the sophisticated understanding that judges have developed with respect to e-discovery issues. Through significant efforts by the Federal Judicial Center and other organizations, federal judges (and an increasing number of state court judges) have learned a great deal about ways in which computers retain and search data. The search queries in Judge Story's Order were nuanced and carefully designed to achieve specific results. Some queries were single word queries, while others were wild-card searches or a combination of specific term and wild-card searches. Still other queries used proximity search theory ("term A within X words of Term B"), while a final grouping of searches sought to find search terms that were in the same sentence, regardless of its length. Many litigants request ESI with far less specificity.
Judges are also increasingly well-equipped to spot inaccuracies within e-discovery motions and oral argument, even without assistance from opposing counsel. In his Order, Judge Story criticized Taser for the questionable nature of the search results it submitted to the Court in support of its proposed search protocol: "For instance, the Court notes that somehow a search for "in-custody death" returned significantly fewer documents than the more narrow search for 'in-custody death' AND 'X26' AND 'M26" AND 'contribute' AND 'cause.'" 2007 WL 1630875 at *7 (footnote 5). Even if this inconsistency was caused by innocent mistake, such slip-ups invite both judges and opposing counsel to discount other statements made by the litigant. In Taser's case, to support its motion for further relief, the company was forced to engage a forensic examiner to draft an affidavit that explained the technical impossibility of complying with the Court's explicit instructions and suggested an alternative that the expert believed was consistent with the spirit of the Court's Order. Had the case developed differently, an unopposed motion would likely not have required the additional complication and expense of supporting expert testimony.
Finally, the Order demonstrates the value of separately prioritizing and valuing the issues to be discussed at a meet and confer session. The Williams Order was made without regard to the cost required to comply with its terms, which might be a crippling result for some litigants. Separately, though the Order contains no discussion of the estimated size of the presumptively responsive document collection, in the context of a typical corporate document production, forty-five days is an extremely aggressive schedule for identifying potentially privileged documents, carefully reviewing each such document, and creating a reliable, comprehensive log. Depending on the size of the legal team and other ongoing projects in the case, a massive, high-priority privilege review is likely to powerfully distract the legal team and set back case development in a way that hurts a litigant far more than immediate monetary sanctions.
By taking too aggressive a stance with respect to electronic discovery issues, Taser suffered a significant strategic setback. Moreover, in its role as a producing party of discovery materials, Taser also lost credibility-a non-renewable resource-in the eyes of the judge scheduled to try the case. Had Taser taken a more flexible approach in its negotiations with opposing counsel, it is possible that none of these issues would ever have risen to the level of judicial notice. Moreover, even if the parties had been unable to resolve all their differences, which will still occur with regularity even under the amended Federal Rules, Taser's ability to show progress on at least some of the issues and its flexibility would help it demonstrate to the Court that it was operating in good faith. Though hard to quantify in value, such efforts can help litigants establish credibility over the life of the dispute and may aid in settling or otherwise resolving the matter.