Before I limited my law practice to work for courts and counsel, I was a trial lawyer working for contingent fees.  For 20+ years, I never charged for an hour of my time.  I funded the cases, did the work and was paid only if I recovered damages for my clients.  I charged 40% plus expenses; so, for the most part my clients and I shared roughly equally in the outcome.  At the time, I thought my fees proper, and they were certainly “industry standard.”  Everyone charged about the same, not from collusion but from plagiarism: lawyers didn’t draft fee agreements; we copied them.

But as I look back, I see that I could have charged less—even much less—and still have made a good living.  The only limits on what I could charge were the marketplace, where I saw no competition on price, and ethical precepts dictating a lawyer may not charge an illegal or unconscionable fee.

So, as someone who made a lot of money charging more than I needed to, I’m prompted to ask:

What are unconscionable charges in e-discovery?

I’m prompted by an affidavit, a sworn statement of an e-discovery expert leading a national litigation support vendor.  I won’t name names, because this post is about practices, not people.  But the affidavit shocked my conscience.

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It took eons for wind-borne grit to form the red rocks of Sedona, Arizona into greatness.  It took barely 16 years for Richard Braman’s grit to form The Sedona Conference and guide it to greatness.  I’m saddened to report that Richard Braman has died after a long battle with cancer.  Richard was just 60; but, in his too-brief life, he moved something more intractable than mountains; he moved the law forward in a reasoned and just way.

Richard Braman led all of us in the “Sedona Bubble” to lay down swords and use an advocate’s more powerful weapon, dialogue.  Richard carved out room for cooperation in an adversarial system of justice.  Some thought Richard’s Cooperation Proclamation naïve; but, Richard Braman was no naïf.  He was an accomplished trial lawyer who knew the trenches yet understood how much more could be won on level ground.

Perhaps it was Richard’s keen appreciation for jazz—he’d owned a jazz club in Minneapolis—that allowed him to see how discord and harmony could co-exist. I don’t know his inspiration; but, I know he was right.

I’m also certain that we have lost an extraordinary lawyer—a gentleman, a gentle leader and a true visionary.  The next time an opponent is a bit more reasonable, a bit more straightforward in an e-discovery conference, take a moment to thank Richard Braman.  My sympathies to Richard’s family, his co-workers at The Sedona Conference, his partners at Gray Plant Mooty and the many friends, foes and colleagues fortunate to have known him.

A funeral service will be held on Saturday, June 14, 2014 at 2:00 PM in the chapel of Greer’s Mortuary of Sedona, followed by interment at Sedona Community Cemetery.  Rest in peace, Richard.

I’ve lately been immersed in the minutiae of load files while trying to complete a primer on forms of production and craft a load file exercise for the workbook students will use in the upcoming Georgetown E-Discovery Training Academy.

By the way, there’s still time to register for the ultimate e-discovery master class cum boot camp—a week in Washington, D.C. studying electronic discovery with a dedicated faculty, getting down and dirty with data.  You promised you were going to get your arms around the e-stuff; now is the time, and the Georgetown Academy is the place.  June 1-6, 2014.  I’ll sweeten the pot: Use the code EDTAREFERRAL when registering and take $300.00 off the price.

While sojourning in load file hell, I stumbled upon a tidbit of information I thought other e-discovery groupies might find mildly diverting.

Our Sesame Street words for today are Thorn and Pilcrow.

I refer, of course to the two symbols that serve as familiar field delimiters in Concordance load files; those persnickety text files that carry metadata and other information into e-discovery review tools.  In order for tabular data to be discretely searchable, it has to be set off (“fielded”) from other data by a separator.  On paper, we do this with vertical and horizontal lines, drawing rows and columns.  We literally delineate the fields of data so first names don’t wander into, say, last names or street names.  To accomplish the same end with digital data in load files, we use delimiters, such as commas, tabs or, in the case of Concordance load files, thorns and pilcrows.

A Thorn looks like this: þ and a Pilcrow looks like this: ¶
When seen in a load file, they look like this:

If you’re like me, you’ve been happily calling pilcrows “paragraph symbols” for quite some time, and had no idea that very pregnant capital “I” was called a thorn.

But here’s the cool part: Thorns were very nearly a part of our modern English alphabet.  No kidding.  Apart from our boundless delight communing with thorns in load files, we nearly see a thorn every time we come across some cheesy shop that calls itself “Ye Olde This or That.”  The thorn was once a character standing in for the letter combination “TH” and pronounced the same way.   So, many signs in jolly ol’ England once read “þe” pronounced “the.”

Over time, what with old English scripts and fading paint and such, the thorn morphed into the letter “Y” and all those “þe Olde Curiosity Shoppes” became “Ye Olde Curiosity Shoppes.”  Another explanation is that, with the advent of the printing press, countries like Germany and Italy who exported typefaces didn’t use the thorn in their languages; so, they didn’t make thorn type.  Accordingly, those who thought the letter Y served as a reasonable facsimile started using it in lieu of the thorn.

When you see a thorn in a load file, smile.  We very nearly lost her forever.

Hat tip to http://mentalfloss.com/article/31904/12-letters-didnt-make-alphabet

U.S. District Judge James Browning is a fine fellow.  There are many reasons to say so; but the first is that, though he sits in New Mexico, he was born in the Great State of Texas.  Judge Browning kindly spoke to my E-Discovery class at the law school in September 2012.  I’d sought him out because he’d been ably grappling with e-discovery issues in a case styled S2 v. Micron.  In his remarks to my class, he splendidly recounted some of the challenges faced by judges who ascended to the bench before the Age of Digital Evidence.  Judge Browning has one of those C.V.s that could make any lawyer hate him (e.g., Yale, varsity letterman, Law Review editor-in-chief, Coif, Supreme Court clerk); but he’s a good judge and a nice guy to boot.

I share my admiration of Judge Browning to underscore that I feel a bit of a rat in expressing misgivings about his recent opinion in The Anderson Living Trust v. WPX Energy Production, LLC, No. CIV 12-0040 JB/LFG. (D. New Mexico March 6, 2014).  I think he got it wrong in some respects–not on the peculiar equities of the case before him, but in his broader analysis of Rule 34 of the Federal Rules of Civil Procedure and in conjuring a Hobson’s choice for requesting parties.  Continue reading →

Today was ostensibly the last day for public comment on the proposed amendments to the Federal Rules of Civil Procedure.  The good news for other procrastinators is that the submission deadline has been extended to accommodate scheduled website maintenance,  The new deadline for submitting public comments is 11:59 PM ET on Tuesday, February 18, 2014.  Over 1,600 comments have been submitted, and I’ve been trying to wade through them, unsurprised at the deep division between plaintiffs and corporate interests.  I can’t recall another time when so much has been spent by corporate lobbyists to influence the civil rulemaking process.  Clearly, corporate America expects a bigger payoff from these proposed amendments than I do.

Notwithstanding their strengths, there are aspects of the proposed amendments that should go back to the drawing board.  Many commentators focus on problems with Proposed Rule 26 and it’s efforts to narrow the scope of discovery.  Some are incensed that proposed Rule 37(e) offers insufficient immunity from sanctions for spoliation, choosing to ignore the fact that the incidence of spoliation sanctions in federal court is historically less than the national incidence of death by lightning strike.  Ironically, those grousing the loudest are the same white shoe-types who play golf in a thunderstorm.

I finally threw my comment on the pyre, I mean pile, or, at least I tried to do so; but, the submission web page was indeed shut down for website maintenance.  That gave me time to solicit your input, dear reader, while there’s still a chance to tweak my comments if you find I’ve made a mess of it.  Here’s what I’m planning to submit: Continue reading →