E-discovery errors take toll on judges, too
June 4, 2008
When a judge like U.S. Chief Magistrate Judge Paul W. Grimm goes out of his way to alert attorneys at large, either it is need-to-know information or hizzoner is trying to nip a bothersome behavior in the bud.
There appeared to be a bit of both in last week’s memo (PDF) in the hotly contested case between Dunkirk-based Victor Stanley Inc. and Southern California-based Creative Pipe Inc.
After resolving the question at hand (deciding that Creative Pipe hadn’t made reasonable efforts to avoid waiving attorney-client privilege in electronic discovery), Grimm took the opportunity to lecture on privilege logs and in camera review.
Privilege logs are commonly used during discovery to identify the documents withheld and note why they’ve been withheld — without, of course, revealing their specific substance.
“In actuality, lawyers infrequently provide all the basic information called for in a privilege log, and if they do, it is usually so cryptic that the log falls far short of its intended goal of providing sufficient information to the reviewing court to enable a determination to be made regarding the appropriateness of the privilege/protection asserted without resorting to extrinsic evidence or in camera review of the documents themselves,” Grimm wrote.
Grimm segued to the result of such ineffective privilege logs: judges having to scrutinize the documents to solve what the attorneys couldn’t on their own.
“In camera review, however, can be an enormous burden to the court, about which the parties and their attorneys often seem blissfully unconcerned,” Grimm wrote.
He detailed the manifold factors and subfactors a judge must consider for each document submitted. Multiply that effort by 165, the number of documents at issue in the Victor Stanley case.
Grimm, a vocal proponent of meet-and-confers to resolve such problems short of judicial intervention, cited seven passages from federal court decisions cautioning against routine use of the court’s time in this way.
Lawyers would be wise to listen for lessons in Grimm’s gripes.
BRENDAN KEARNEY, Legal Affairs Writer
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The more interesting part of the opinion was Judge Grimm’s discussion of variations in ESI search methodologies. I doubt there is anyone out there (here) who did not already know that federal judges resent laywers transferring ESI discovery burdens to courts.