U.S. Magistrate Judge Paul S. Grewal (pronounced “grey-wahl”) cuts an impressive figure in the e-discovery community.  In less than four years on the bench, Judge Grewal has written several opinions addressing instances of discovery incompetence and misconduct in epic battles between the tech titans tramping through his court in San Jose, California.  His latest is an order on a Motion to Compel and for Sanctions in a patent dispute, Venture Corp., LTD v. James P. Barrett.  It’s a fight between a multi-billion dollar Singapore tech concern and an inventor.  In praising Judge Grewal, I feel obliged to point out that he enjoyed an unfair advantage over the litigants in that His Honor read the Federal Rules of Civil Procedure, particularly Rule 34, which Judge Grewal termed “about as basic to any civil case as it gets.”  No fair reading the rules, Judge! Continue reading →

The Sedona Conference “Best Practices Recommendations & Principles for Addressing Electronic Document Production (2d Edition 2007)” still impresses me as a thoughtful and balanced articulation of how electronic discovery should proceed.  Yet, each time I read them, Principle Six stands out like a witch’s hairy mole on a pretty face.

Sedona Principle 6 is overdue for an overhaul:  It’s out of synch with reality, and always has been.

The current Principle Six states, “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

Sometimes responding parties are best situated.  But, sometimes they are foxes guarding henhouses, and sometimes possess so little competence that their folly serves as fodder for sanctions.

The presumption of superior competence is belied by the reality of widespread confusion and incompetence.  Yes, an organization may better know its own data for it’s in a superior position to know; but, it’s foolish to assume they possess a superior ken of their data with respect to its identification, preservation and transit into and through e-discovery.  That’s a specialty. Continue reading →

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.

Continue reading →

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.