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Why e-Discovery Stands for 'Eureka Discovery' in California

Josh Gilliland

California. We pride ourselves on innovation. Our state is the home of San Francisco and Silicon Valley, the video game industry, personal computers, and a culture of creativity. We have attorneys and judges who are in the vanguard of e-discovery case law and carry forward the tradition of innovation in the Bay Area.

As Relativity users meet in San Francisco to learn the latest on how Relativity can help them conduct discovery, let’s review the state of e-discovery in California.

The Duty of Competency in e-Discovery

e-Discovery competency is not a dream in California. The California State Bar has issued Proposed Formal Opinion Interim No 11-0004 on exactly that subject. The Revised Proposed Opinion includes the following areas where lawyers should be competent in e-discovery1:

1.    Initially assess e-discovery 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.   Identify custodians of relevant ESI;
5.   Perform data searches;
6.   Collect responsive ESI in a manner that preserves the integrity of that ESI;
7.    Advise the client on available options for collection and preservation of ESI;
8.   Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and
9.   Produce responsive ESI in a recognized and appropriate manner.

The Proposed Opinion gives lawyers three options if they lack this competency2:

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.

The Proposed Opinion further states that the “lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”3

The California Rules of Court for conducting meet and confers already echo virtually all of these e-discovery practice areas as required topics to be discussed before the first case management conference.4

The Northern District of California has also issued a standing order on e-discovery that includes a comprehensive checklist on e-discovery issues to be discussed at the Rule 26(f) conference. The checklist includes topics ranging from preservation to proportionality to search, which arguably further the newly stated goals of cooperation in the pending Amendments to Federal Rules of Civil Procedure Rule 1 and proportionality analysis moved up to Rule 26(b)(1).5 Consider the following examples6:

The nature and scope of burdens associated with the proposed preservation and discovery of ESI.

The quality control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI.

The formats in which unstructured ESI (email, presentations, word processing, etc.) will be produced.

Whether the parties can agree upon alternative ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification.

Do You Know the Way to San Jose?

There are two judges in San Jose who are significant voices in e-discovery. The first is Santa Clara Superior Court Judge Socrates Manoukian, who has issued substantial tentative orders on e-discovery issues in state court cases. The second is Federal Magistrate Judge Paul Grewal, who continues to rise in e-discovery jurisprudence.

California’s e-discovery case law is very thin, because discovery disputes are not published like in the Federal Courts. Still, Judge Manoukian has issued detailed e-discovery tentative orders, giving guidance to attorneys, as opposed to writing one paragraph granting or denying a motion.

Josh GillilandFor example, GuideTech, LLC v. Brilliant Instruments, Inc., et al., Case No. 110CV187147 (October 31, 2014), the court denied and granted in part a motion to quash third-party subpoenas requiring specific search terms. The producing parties brought a motion to quash, in part on the grounds specific search terms would produce confidential attorney-client communications and irrelevant information. The Court agreed and modified the subpoena to exclude specific search terms that sought irrelevant or attorney-client communications.

Magistrate Judge Paul Grewal has a flare for making a point in his opening paragraphs. Consider the following over a failed meet and confer process over a motion to quash the imaging of computer hard drives:

This case illustrates a recurring problem in all civil discovery, especially in intellectual property cases. A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. Think Eddie Haskell singing the Beaver's praises to June Cleaver, only moments after giving him the business in private. (Boston Sci. Corp. v. Lee, 2014 U.S. Dist. LEXIS 107584, 1 (N.D. Cal. Aug. 4, 2014)).

You read that right. A “Leave it to Beaver” reference on how parties approach discovery. Judge Grewal has also referenced Tribbles from Star Trek in the Apple v. Samsung litigation.7

Meet and Confer in Good Faith

Boston Sci. Corp. v. Lee was competitor-competitor litigation where the plaintiff sought forensic imaging or a corporate issued laptop from a former employee, who was now employed by the producing party. The plaintiff offered in the motion practice what the defendant had offered during the meet and confer: have a third-party service provider conduct the search for responsive information on the subject laptop (Boston Sci. Corp., at *17-20). The court was tempted to use this plan, with the plaintiff having to pay the costs. However, the Court instead granted the motion to quash, explaining:

But to allow Boston Scientific now to seek shelter from a fallback position that Nevro previously tendered in good faith would make a mockery of both parties' obligation to meet and confer in good faith from the start. The time to tap flexibility and creativity is during meet and confer, not after. (Boston Sci. Corp., at *20-22, emphasis added.)

Judge Grewal laid down the law on taking the meet and confer process seriously. It flies against Federal Rule of Civil Procedure Rule 1’s duty to control litigation costs by adopting an opposing party’s meet and confer recommendation after bringing a motion to compel. It is unlikely the practice of quashing motions in such a manner will be called the Rule Against Eddie Haskell, but it is a practice likely to be followed by other judges.

The “E” in e-Discovery is for Eureka

California’s admittance into the United States as a state was expedited because of the Gold Rush. Over the state’s history, technology companies with inspiring stories have grown from former orchards. California has a history of creative solutions to challenges.

Attorneys representing high technology companies to individuals have to be innovative. The case with 30 terabytes of data is just as important as the case with 3 gigabytes to the parties in a lawsuit. California lawyers have a duty to competently handle the e-discovery issues in their cases. The state bar and courts are each making this point, in both ethical opinions and standing orders. The attorneys who embrace the need to understand e-discovery, and who use the tools necessary to best serve their clients, are the ones who will continue to be successful.

Joshua Gilliland, Esq., is a California attorney and focuses on e-discovery issues in his blog, Josh is a graduate of McGeorge, UOP, and UC Davis. He has been published in multiple publications on e-discovery, admissibility, and litigation.

What do you think makes California unique in the wider e-discovery community? Tell us in the comments, and if you haven’t already, sign up for the free Relativity Spring Launch Roadshow in San Francisco to continue the conversation.

1 Proposed Formal Opinion Interim No 11-0004.
2 Id.
3 Id.
4 See California Rules of Court Rule 3.724(8).
5 The pending Amendments to Rule 1 state the Rules “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”, emphasis added.
6 See, United States District Court, Northern District of California, Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information.
7 See Judge Grewal also show he is a Trekkie in Apple Inc. v. Samsung Elecs. Co., 2013 U.S. Dist. Lexis 15072 (N.D. Cal. Feb. 1, 2013): What tribbles are to the Starship Enterprise, Captain Kirk, and Mr. Spock, the parties’ ever-multiplying sealing and redaction requests are to this case, Judge Koh, and the undersigned.

Joshua Gilliland, Esq., is a California attorney and focuses on e-discovery issues in his blog, Josh is a graduate of McGeorge, UOP, and UC Davis. He has been published in multiple publications on e-discovery, admissibility, and litigation.