Speaker 1: Welcome to Consider This, the popular podcast series brought to you by the Organization of Legal Professionals. I'm your host, Bridget Novak. This series will focus on the legal industry, current trends, substantive issues, and career perspectives. Each program will run approximately 15 minutes. We hope you stay tuned for this program and join us for others in the future. Today's show is part two of the Brave New World of eDiscovery. We will be discussing some of the challenges of this new world. In part one, we explored the different attitudes towards and some of the practices surrounding eDiscovery. In part two, we will explore jurisdictional differences and learn about some new federal standards and discuss how eDiscovery is changing the legal landscape. We're extremely fortunate to have as our guest today Douglas Mitchell, a litigation partner at Boies Shiller Flexner and chairperson of the board of OLP. Thank you so much for joining us, Doug.

Speaker 2: Thank you for having me.

Speaker 1: It seems eDiscovery is just one more thing that is forcing law firms to adopt new ways of doing business. I mean, they used to be able to lock a few associates up in a room with a couple of boxes of documents and voila, discovery was done. Now the discovery process involves teams of professionals and a lot more data. Stricter parameters have to be developed to ensure that the work is done efficiently and that all the important data is discovered. You are one of the attorneys on the task force that helped draft guidelines for electronic technology for the U.S. Department of Justice, right?

Speaker 2: That's correct. We are a joint task force between the United States Department of Justice and the Office of Defender Services, which oversees the indigent defense system in the United States.

Speaker 1: And in February, the group came out with, quote, recommendations for ESI discovery production in federal criminal cases, also known as the Joint eDiscovery Protocol. What do you think the key or most important recommendations of that report are?

Speaker 2: Well, I don't know that there's any single recommendation that you could identify as a key recommendation, but certainly one of the most important parts of the protocol is that the Department of Justice and the Office of Defender Services and a number of defense attorneys around the country recognized that criminal litigation was not immune from the electronic discovery burdens that had been afflicting civil cases for a number of years. And as a consequence, an effort was undertaken to find ways to reduce the costs associated with electronic discovery in criminal cases, particularly those cases that are funded by individual resources through the Criminal Justice Act with federal public defender offices and court-appointed attorneys. That discussion led to a year-and-a-half effort between the Department of Justice and the Office of Defender Services to try and develop a set of guidelines and protocols that both the prosecution and the defense could agree would constitute a type of best practices to guide their conduct as they exchange discovery between the government to the defense and from the defense to the government. And perhaps the most important aspect of that is the notion that the government and the defense teams need to sit down very early in the case, and they need to disclose to one another the nature of the evidence, the volume of the evidence, and then come to some agreements about how that evidence is going to be exchanged between the different groups so that there can be a cooperative atmosphere as opposed to an adversarial atmosphere in the exchange of discovery.

Speaker 1: Well, you mentioned best practices, and I guess one of the principles upon which this set of recommendations is based is the establishment of best practices, because one of the principles states, and I'm going to quote it exactly, quote, The parties should discuss what formats of production are possible and appropriate and what formats can then be generated. Any format selected should maintain the ESI's integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format. So when I read that, I thought, well, that sounds rather optimistic or at least premature. What industry standards are they referring to?

Speaker 2: Well, it's probably a flexible concept. One of the unique problems of the criminal litigation world is the prosecution will, during the course of their initial investigation, seize or obtain through subpoenas or through voluntary disclosures by witnesses a variety of evidence, and that evidence comes to them in whatever form it's maintained by the custodian. So if it's a subpoena served on a bank, the bank will supply the government with documents in either the electronic form they were in when the bank had them or paper format or whatever context it is that the bank produces it. The government, therefore, has in its possession, generally, a wide variety of evidence in a variety of formats, and the principle is an effort to try and maintain a degree of consistency so that the government will produce to the defense what they've received in whatever format it might be. If the government has processed that information in some form or fashion into a more usable form, then the government will provide to the defendants that processed information in a more usable form so that the cost and expense of processing doesn't need to be duplicated on the defense side. And industry standards is probably going to depend largely on what form the evidence was in when the government received it, but it's an effort to provide it in a format that both sides can use with as little cost and as little sophistication as possible.

Speaker 1: So format is key in developing a standard to maintain that throughout the use of that material, but there's another principle that is repeated throughout this set of recommendations, and that's costs. There's another principle that addresses that in this way. The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. So is enough being done to control costs? There's so much emphasis on that.

Speaker 2: Well, again, if we return to the idea that we are in a state of transition, then there's always going to be a degree of cost involved in moving from a familiar evidence environment where the costs for processing evidence are mature, the economies of scale have come into play, enough time has passed that the most expensive, sophisticated methods of collecting, reviewing, and presenting the evidence have been developed so that the costs have reached the lowest level and they've reached the lowest common denominator in the industry chain. In a state of transition, there will always be higher costs when you begin to encounter newer kinds of evidence that are hosted in different environments or produced and exchanged in different formats. So there is an effort underway to reduce the cost in this period of transition and an effort to try and find a way to exchange that information in whatever form it might be in, in a way that is the most effective possible and the most cost-effective possible. It will be, in many respects, a moving target because it will depend on the evidence at issue in the particular case. It will depend, perhaps, on the jurisdiction. It will depend on the sophistication and ability of the respective attorneys. But there is, as you've noted, this effort to try and find the most cost-effective method while at the same time protecting each individual defendant's right to effective defense.

Speaker 1: Once again, our guest today is Douglas Mitchell, a litigation partner at Boyce Shiller Flexner and chairperson of the board of OLP. Another interesting recommendation from the task force was, quote, in multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinators or seek appointment of a coordinating discovery attorney. This sounds like it's mentioning the possibility of an entirely new job title and one not necessarily inside a law firm. Where do you see these people coming from who would take on that role?

Speaker 2: Well, the concept of a coordinating discovery attorney is a very important concept during this transition time. Court-appointed attorneys very frequently are solo practitioners or they work in small firms. They lack a great deal of computer expertise. They are often unfamiliar with e-discovery practices and principles. The government very often today in a criminal case will produce a number of hard drives containing large volumes of electronic discovery. Very often those solo practitioners simply lack the skill sets or the resources to handle that large volume of electronic discovery effectively. The coordinating discovery attorney is an individual who has been hired by the Office of Defender Services and can be appointed by the federal district court presiding over a particular case. That coordinating discovery attorney then comes into the case and acts as a liaison between the individual defense counsel for each of the defendants, the court, and the prosecution to handle the electronic discovery matters. They generally collect the electronic discovery from the government. They handle the tasks related to processing that information, importing it into whatever database or litigation support system will be used to review the evidence, and then they help the defense teams understand how best to search it, how best to organize it, and how best to cull the evidence so that they can present it during their cases at trial. They become a very effective tool at reducing the cost of criminal litigation, at least in indigent cases where they're used, because they're able to take their more sophisticated skill sets and handle and process and produce electronic discovery far more effectively and efficiently than a traditional solo practitioner would in a criminal-appointed case.

Speaker 1: Sophisticated skill sets sounds like an understatement. This sounds like a real, not jack-of-all-trades, but master of several. So what kinds of training or background do you see this person having?

Speaker 2: Well, they are generally, as a matter of fact, I think of those who have been appointed so far there, each of them is an attorney. Each of them has a great deal of experience with criminal litigation in the federal system. Each of them is also very familiar with and has a great deal of experience with electronic discovery issues. They understand the law surrounding electronic discovery. They also understand the technical aspects of it. They are familiar with a variety of vendors and their systems and how they work, and they have a facility for, as a general rule, being able to communicate effectively with the court and prosecution about the defense needs and why those needs are important in the particular case. There are very few of them, I think, in the country who have that capability right now, but fortunately, there are two or three that the Office of Defender Services have located and they're doing an extraordinary job.

Speaker 1: Sounds like a great career opportunity, though. You hear this and you can start to pursue that as your goal, to become one of these.

Speaker 2: That's correct. And then it's something that takes time to develop, it takes a great deal of experience. But the three people, I think, the Office of Defender Services have in that position now are extremely confident, they're very good, and they are doing a lot of good work to both reduce the cost of criminal discovery and, at the same time, ensuring that each of the defendants has a more effective defense.

Speaker 1: And just to reiterate what you've said throughout the program, part one and two, people entering law today really do need to take more seriously the need to learn about technology and use computers, become familiar with it. One of the other recommendations from this task force says, quote, in the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and expertise and experience regarding ESI.

Speaker 2: That's correct. That is consistent with some recent amendments to the model rules of professional responsibility, which also note that lawyers in today's world have a responsibility to be familiar with legal computer technology so they can best meet their clients' needs. That becomes particularly important in court-appointed criminal cases where sometimes the individual attorneys like we spoke about a moment ago don't have that sophistication, they don't have that skill set. And so it's important for them to find somebody who can help them so they can still be cost-effective in how they represent their client and, at the same time, be effective in representing their client.

Speaker 1: Right. One last area I'd like to discuss today, Doug, and that is the difficulty legal professionals face today when attempting to deal with discovery outside the United States or in cases that involve multiple jurisdictions, because the rules can vary so dramatically from country to country. It's a bit like no man's land, isn't it, with the U.S. on one side advocating that everything is discoverable and the E.U. on the other side struggling to restrict access. Which do you think will win in the end, or how are we going to resolve that?

Speaker 2: Well, I think it's important to remember that we have... There are two different perspectives about the scope of pretrial discovery at play. In most European countries, pretrial discovery with the breadth that American lawyers are familiar with is unknown. The discovery rights are far more limited, and what attorneys are permitted to do during the course of discovery is circumscribed. In the United States, we believe in expansive, broad discovery before trial, and as a consequence, lawyers in the United States have developed the skills and the proclivity to seek discovery of a wide variety of information relating to the issues in their case. When we start crossing borders, those differing systems tend to have a little bit of tension, and when an American attorney goes over to the European Union, for instance, and attempts to serve these broad-based discovery requests, the European Union countries tend to push back a little bit, and part of the pushback involves the enactment over the last several decades of data privacy laws and other restrictions on the transfer of evidence and information outside of those countries to other countries. Many of those laws are aimed particularly at the United States legal system to try and circumscribe the nature and scope of discovery that American lawyers can seek within, for instance, France or Germany or other countries around the world.

Speaker 1: Danielle Pletka Right. And who knows where that's going to end up, somewhere in the middle.

Speaker 2: David Morgan Well, it will end up with negotiated resolutions in each case. There are some substantial policy efforts underway with the Department of Commerce and other governments to negotiate exchange protocols to make the exchange of discovery easier. Some of those are in place, some of them are being discussed further, and then in each individual cases, the lawyers involved often can come up with accommodations to accomplish the things they need to accomplish while still complying with each country's respective data privacy obligations. Danielle Pletka Great.

Speaker 1: You're so well-informed, Doug. Thank you so much for being our guest today. Once again, our guest has been Douglas Mitchell, a litigation partner at Boies Schiller Flexner, and chairperson of the board of OLP. That's all the time we have today. I want to thank our audience for tuning in, and remind you that we will be producing these programs on a regular basis, and that you can listen to this program on a regular basis. Thank you. Douglas Mitchell Thank you. Danielle Pletka Thank you. Douglas Mitchell Thank you. Danielle Pletka Thank you. Douglas Mitchell Thank you. Danielle Pletka Thank you. Douglas Mitchell Thank you. Danielle Pletka Thank you. Douglas Mitchell Thank you. Thank you.