E-Discovery Reflections from Retired Magistrate Judge John Facciola

Episode Notes

Transcript

Digital Detectives: E-Discovery Reflections from Retired Magistrate Judge John Facciola – 7/26/2015

 

Advertiser: Welcome to Digital Detectives, reports from the battlefront. We’ll discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches. Not theory, but practical information that you could use in your law practice. Right here on the Legal Talk Network.

 

Sharon D. Nelson: Welcome to the 58th edition of Digital Detectives, we’re glad to have you with us. I’m Sharon Nelson, president of Sensei Enterprises.

 

John W. Simek: And I’m John Simek, vice president of Sensei Enterprises. Today on Digital Detectives, our topic is, E-Discovery Reflections from Retired Magistrate Judge John Facciola. We’re delighted to welcome today’s guest.

 

Judge John Facciola is retired United States Magistrate Judge who formerly served the United States District Court for the District of Columbia. He authored over 700 opinions, many of them in e-discovery and in the impact of information technology upon Fourth Amendment principles. He is a member of the Sedona Conference Advisory Board and has received the Sedona Conference’s Lifetime Achievement Award. He is an Adjunct Professor of Law at Georgetown Law where he teaches Information Technology, Modern Litigation, and a course in Evidence. Welcome, Judge.

 

Judge John Facciola: Thank you very much.

 

Sharon D. Nelson: Judge, there is still so many lawyers with no knowledge of ediscovery – or putting it kindly, they have very limited knowledge. How do we make ediscovery skills a part of every lawyer’s toolkit?

 

Judge John Facciola: I’m afraid we never will any more than we make genomic medicine part of the toolkit of every general practitioner. All we can hope to do is to train a sufficient number of lawyers who will meet the needs of society with reference to their services. As for those lawyers who refuse to engage in that process and educate themselves, well it’s quite clear that they are now in the position where they may very well be accused of ethical deficiencies in their performances because they are now required by virtue of some amendments to the rules of ethics to have sufficient information in this field. So I suppose we will see over the next few years a process by which those people who are interested and willing to commit time will grow in their abilities while the rest will be left to one side. As for those left to one side, I don’t know. But then again, I don’t remember what happened to Buggy Whip manufacturers either when they became obsolete. So I think that’s where we are. My good friend George Socha estimates that maybe in America there are 500 to a thousand lawyers who truly get this. I don’t know if George is estimating that it’s right, it seems about it’s right. We can make that grow incrementally, but I don’t think we can ever make it grow to the point where it won’t be the entire profession. I think that would be unrealistic and nothing I’ve seen in 17 years suggests to me that that’s about to occur.

 

Sharon D. Nelson: I think you’d find that both John and I would agree with you.

 

John W. Simek: Yes. Well, Judge, can you tell us a little bit about why you believe that health records pose such a challenge in ediscovery?

 

Judge John Facciola: Well, I’m afraid what happened here was we already have seen another aspect in our culture and our society is when technology arrived, the people who used it did not know how to use it. And since they did not, the technology can not be used to their advantage. To the contrary, instead of becoming a means to an end, it becomes an obstruction to accomplishing an end. There’s nothing new here. I remember as a judge, they would put a piece of software on my computer and I would say how would this thing work, and they would say well judge, there’s a guide somewhere. That explains why the Barnes and Nobles near our courthouse was always full of judges looking for manuals on Lotus Notes and Wordperfect. We haven’t been very good as a culture and as a society as to train people who do not know technology how to use that technology. I estimate that maybe I use 10 to 20 percent of the capacity of my computer and that’s pretty good. So all of this money was out there, nature abhors a vacuum, the systems report, and the people who had to use them had insufficient training. As a result, what has been produced is a real detriment to efficient use. We can’t have clinicians sitting at a computer hitting the enter key hundreds of times so they can find a single blood test, yet that appears to be where we are and the challenge is immense. And it’s going to require an enormous amount of training of physicians and clinicians and coders and everyone else to get the system up where it’s even of minimal usefulness.

 

Sharon D. Nelson: Well today we’ve seen the costs of e-discovery become so high. We actually see because we represent a lot of small to midsized businesses. We’ve seen them just kind of look at the budget overall for litigating and decide to settle rather than litigate, even where they believe that they were right in the case. Do you think that these high costs will drive all but the rich from the courts?

 

Judge John Facciola: I’m afraid they will and indeed they have. I mean, it’s now estimated that we try less than 1% of all the cases filed. Certainly, as a magistrate judge for 17 years, I would imagine I spent 70-75 percent of my time settling cases. And certainly, there are cases – all too many of them – where costs drive the result, not just the fairness or any other consideration. That’s a tragedy. It is a tragedy because I think we are in the process of driving the middle class out of the courts. I don’t know how they can afford these costs unless there are immense amounts of money at stake, either it’s to gain or lose. So in fact, the congressional desire that we enforce certain statutes will go by the wayside, those statutes will not be enforced for one of anyone to enforce them. And basically, the litigation we have now takes either of two forms. It is so-called bet the company litigation, with gigantic financial institutions battling each other. Or it is cases brought by plaintiffs whose lawyers are working on a contingent basis in the hopes of getting a substantial recovery and a substantial fee and to pay their expenses. Those are the two most common forms of litigation. All other types of litigation are probably in the process of disappearing, and ediscovery I’m afraid bears a significant amount of the brain for that.

 

John W. Simek: Well in a recent podcast, you had mentioned the electronic discovery training academy which are good and Craig Ball is a part of. Can you tell our listeners a little bit about the academy?

 

Judge John Facciola: Yes. The idea behind the academy is not the traditional CLE program. It is a very intensive 6-day program. It starts on a Sunday and ends on a Friday. You spoke of my friend Craig Ball. Craig never tires of saying something which is this: “Don’t let anybody ever tell you, you don’t need to understand the technology to understand the law. You can not understand the law unless you understand the technology.” So Craig spends just about the entire two first days simply teaching the technology of electronic discovery. On Sunday evening, the four of us, myself, Craig, Tom O’Connor and Maura Grossman do a mock meet and confer in a giving case. That evening, our students are introduced to coaches, wonderful lawyers from the District of Columbia, usually, who serve as their coaches. They are coaching them towards a final meet and confer which will occur on that Friday and will be done in the presence of federal judges like me. In the meanwhile, there are intensive coursework all day long, whether it’s technical or legal. Their idea behind it is to keep a small faculty so we get to know each other well and so that we as a faculty can make a thoroughly integrated presentation. So there are five of us who work nine and ten hour days for those 6 days. And at the end of the program, we test. Craig has tested the participants upon arrival, and he tests them again upon departure. And this year we had a very exciting one, they had done as well as any class as we have ever had. So it’s a remarkable program. I don’t know if they’re exhausted when we finish, but God knows I am. But it requires an extraordinary commitment on everybody’s part with financial and time, but we are all committed to doing it because the results are exactly what we hope to achieve. It’s the same old story, you can’t learn this stuff as a dilettante, it’s not tips after shaving. You have to commit yourself intellectually and otherwise to do it. It’s a tough model.

 

Sharon D. Nelson: It sounds like immersion.

 

Judge John Facciola: Yeah, people who go through it have other words for it, one of which is bootcamp. But I’m proud to report that we now have reached the point where several of our students have become teachers. That is I go through programs and they are the panelists, and that of course makes me – or busts my buttons with pride.

 

John W. Simek: That’s great.

 

Sharon D. Nelson: Now we have often heard you referred to – and I’m talking a little as I say this – as one of the rockstar judges of ediscovery. How did you attain that exalted status? Because they call you that all the time!

 

Judge John Facciola: Yeah, well I think it has a lot to do with the fact that the rockstars of my generation – God help them if they’re still around. If Mick Jagger’s still a rockstar, I guess I qualify as well, mainly because both of us are still perpendicular to the floor. I don’t know where the author of that got that notion, but the idea of rockstar or the cliche is that you stand out. But it was for an article and it was a lot of fun. I much prefer being called the Italian Stallion but-

 

Sharon D. Nelson: Well you’re not going to hear us call you that on this podcast!

 

Judge John Facciola: I’m actually not an Italian stallion, I am a Sicilian stallion.

 

Sharon D. Nelson: That’s a higher rank.

 

Judge John Facciola: Yeah, it’s much higher. My wife doesn’t take any of this seriously, needless to say, so it’s a matter of some derision around here.

 

Sharon D. Nelson: Well as you know, we are also married and I think wives do well to keep their husbands humble. Wouldn’t you agree, John?

 

John W. Simek: Oh yeah, sure.

 

Judge John Facciola: I disagree, John.

 

John W. Simek: I tried that once, it didn’t go well. So your honor, how can we integrate ediscovery in our law schools and educate these students that are going through that so that they’re prepared once they graduate to enter into this whole electronic world?

 

Judge John Facciola: I think the road forks in terms of how to do it and I was a participant at a conference held on the first Sunday of the year by the American Association of Law Schools and this was the precise topic. It was a rainy and miserable morning and I thought we’d be lucky to have more audience than panelists just in a standing room only with professors from all over America. The discussion was a wonderful one but we learned a lot of things from it. Bill Henderson from the University of Indiana showed us how the data show that the graduates are not doing what lawyers did 20 years ago. They’re doing very different things. They’re more entrepreneurial in their approach because they have to be. They’re also entering into technical fields that maybe lawyers didn’t go to 25 years ago. So our graduates are going a different direction. Now we can go either of two ways, which is have discreet courses like the ones I teach and Bill Hamilton teaches and Craig Ball teaches and Maura Grossman teaches. Or we can try to integrate the topic into other subjects such as civil procedure or evidence and contract formation. I think that’s where the road forks and there’s no consensus in the room as to that issue. But in the meanwhile, I certainly believe that a separate course in this area is valuable and useful to a large number of students. But my view that shouldn’t deter the integration of these topics into other aspects of this. Think about a course in civil procedure. I had a remarkable experience, Judge Pollard, she asked me to come teach a couple of hours in her class on civil procedure. And I grabbed a book on civil procedure from the law book company and read it, and I realized as I was going over it that they were my notes from my class on civil procedure over 45 years ago. So we have to figure out how to bring this kicking and screaming into the 20th century. How much time are we going to spend on interrogatories when we know they are rapidly disappearing? How much time are we going to spend on evidence and focusing on paper documents when 98% of all the communications in the face of the earth are digital. Those are the tough questions that are in front of us, and it is a very, very demanding question. I for one think the Ediscovery Training Academy not only makes a lot of sense so you could make an argument for a kind of boot camp at the beginning of the semester. Georgetown is already doing that, I think, in the area of finance. The law firms are screaming, you send us all these brilliant people and none of them know how to cash a check. So the law school in Georgetown focused on how to give their students fundamental understanding of finance and accounting and management and so forth. So we’ll have to see that, but the world is changing for our graduates. And I know that the students in my class in information technology, they were able to market the skills they had picked up for summer and full times jobs and I was very happy to see that.

 

John W. Simek: Great. Well, before we move onto the next segment, let’s take a quick commercial break.

 

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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is, E-Discovery Reflections from Retired Magistrate Judge John Facciola. Judge Facciola is a retired United States Magistrate Judge who formerly served in the United States district court for the district of Columbia. We heard you say how important it is to have a sense of humor as a judge. Can you tell us how that has helped you?

 

Judge John Facciola: Well, I don’t know if you can improve on what Mark Twain said, he said that he often found that a man who didn’t have an eager sense of humor didn’t have any sense at all. So my father’s favorite expression – and I have always found that no one told me when I took the oath that I was supposed to be bold. And I have never felt any obligation to be so. And in the proper place can make points with a rapier-like thrust that can’t be made by long talk. So I’ve always felt that it’s serious business, and it should be serious when we tell them. But by the same token, there are opportunities to see things and that width and humor play an important role in permitting work may not be observable. One of my opinions I used the definition of – a wonderful definition – of chutzpah. It might have seemed out of place but it made the point. So I’ve always felt the embers are very much a part of the tools that any human being has to have as you go through life. Particularly a judge who is trying to explain things and understand things. And also, you’ve got to admit, there’s no one on earth more fun to make fun of than lawyers. It’s almost as if they’re trying, it’s such a bloody target out there with their formality and their drinking suits. They’re the answers to a judge’s prayer.

 

Sharon D. Nelson: Well, you’re making me very glad I never appeared before you, Judge. We’re too easy as targets!

 

John W. Simek: Well I’m glad now, Sharon, you just heard the judge say that I can make fun of you.

 

Sharon D. Nelson: Yeah, it’s all yours John, take it away.

 

John W. Simek: Well, we also heard you say that a law firm that doesn’t invest in professional development is heading for extinction. How does that relate to ediscovery and the practice of law generally?

 

Judge John Facciola: Well, generally, the practice of law, think about it if you would. Try to identify technology that any of us predicted would come online 5 years ago. It’s astonishing when you think about it. There are whole new ways for human beings. I mean, just a week ago, I saw one of the Fortune 100 announce that it was not going to use voicemail anymore because they found that the millennial generation uses text messages and don’t bother to call each other. So there’s a form of communication that’s transformed before our very eyes. So if you’re running an enterprise and the purpose of an enterprise is to provide legal counsel to a culture, to a society, to institutions, businesses in that society. How can you possible do that if culturally and technologically, you’re not at one with the people you are purporting to give guidance to? It’s absurd. You’re speaking in English and they’re speaking French. So I think that law firms have to be infinitely created and have to rely on innovation, on new ways of doing things so that the people who are going to be running American businesses are going to be comfortable with them. For example, I can’t imagine anyone escaping from a business school worthy of a name without a solid grounding these days in analytics and data analysis and management in the technological enterprise. If those people are the people coming out of the business school, we can agree to suppose that when they pick up the phone and look for a lawyer, that lawyer will have to be at least their equal and understanding the technology which is creating the legal problem that they have. Therefore I have to say, law firms that don’t do that, I don’t understand how they can have a future any more than I think other businesses will have a future if they do not keep up culturally with how our society is changing so dramatically.

 

Sharon D. Nelson: Well I certainly agree with that and we see a lot of – unfortunately – a lot of lawyers who are beginning to look like dinosaurs because they will not adapt and I fear for those who will not move into the future and especially with technology. You’ve been quoted as saying that the future of law belongs to the creative, which I think John and I both agree with, but there’s lots of ways of being creative. Would you expand on what you think about how we need to become creative?

 

Judge John Facciola: I think the first aspect of the creativity is the financial aspect of it. In other words, will the hourly model persist or is there an alternative to it that can retain sufficient profits of a law firm without exhausting the financial resources of the party that’s being served. So creative ways of packaging how these services are provided. Part of that creativity is finding ways to make that delivery of those services as efficient as humanly possible using the technology. So the first aspect of being creative is financial creativity. How can lawyers continue to provide the crucial services that they do in a manner that doesn’t bankrupt the people they are serving. The second aspect of the creativity is to look at the way lawyers proficiently do things and ask if there are other ways to do them. Certainly, we are beginning to see an emphasis among the profession in providing the service of information governance. So that particular field of endeavor which was never lawyers discipline when I was practicing law, is now a crucial part of the business. So how do I look at the way this corporation keeps its records and are there creative ways I can integrate into this principles of information governance and help them keep it. They have to then throw out everything they don’t. Again, I don’t know if lawyers ever even think about that, they would always be reactive to a problem as opposed to being proactive to try and find out where the client’s problems are and solve them before they become a litigation headache. The final aspect of the creativity would be to try and figure out ways where legal rules and requirements that were adopted and came into force in a paper universe, how they can be adopted in a new universe. And whether that is the manner in which you do privilege logs, a manner in which you take a very large stack of 7 and you hit it down to a more reasonable 1 by using the creative tools at your command. There is a part of a lawyer’s tradition of saying that’s not the way we do things. We are committed to looking at every document because every document may be significant. Well, I’m afraid that’s a luxury that nobody can afford. So now the question is not to go to an extreme and throw everything out the window, but to say okay, I’ve got this rule and this rule requires me to tell the court such and such. How do I take this data and do that and how do I do it creatively? How do I do it other than in the conscious and least efficient way possible? It’s that kind of creativity.

 

John W. Simek: Well, Sharon and I believe that cooperation transparency, they’re so important in ediscovery, but we really certainly encountered many cases where the atmosphere was very hostile and there was a lot of hiding the ball. Do you think we’re improving in those two areas and what can be done?

 

Judge John Facciola: Yes, I think we are, I think primarily. I mean, every opinion I read, the judge is finding at the conclusion of her opinion saying, “You know, this whole thing could have been avoided if you had told it beforehand.” And I don’t know when lawyers are going to hear that. Because believe me, the judges are shouting it from the rooftops. Case after case after case, why did this take so long? Why didn’t you talk? Why do you need all this, what’s going on here? So I just think that the judges are well past losing their patience with this, and certainly the emphasis of the rules amendments on proportionality, on effective advocacy, and the emphasis in the cases, again and again. I hope they will have an impact on the Bar, if the Bar will only read them. I still remember working with Richard Braman on the Sedona Conference Cooperation and Proclamation, and some of the emails and messages he got when he came out with it, which had sentences in them which were mostly, “Drop dead, over my dead body.” But Richard hit a nerve, didn’t he? And from it came, I think, a whole new different way of looking at things. Is there resistance to it? Of course. It’s very hard to change people’s attitude overnight. But certainly in the remaining of my last few years as a judge, I certainly saw that attitude becoming more prominent. I also found that it was interesting how much lawyers benefited from aggressive judicial management. It seems like they were more comfortable with it, with the judge’s interference in the process at an early stage before everybody went out and start to kill each other and say what’s this all about. So the emphasis in the new rules on aggressive judicial management, the significant rule, that concept play at the Duke Conference, the influence it had on the drafts and the rules, I hope will play itself out in the next few years.

 

Sharon D. Nelson: Well, we share your hope and we want to thank you very much for joining us today. I want to assure you that no one would ever call you dull. So thanks for the Mark Twain quotes and all the other comic references.

 

Judge John Facciola: You might want to look up an accurate quote. I can’t vouch for my old man, my father was very good at making up things that attributed to other people, so be very careful.

 

Sharon D. Nelson: Well, you know, I think that’s a very good characteristic in a father, that could be very useful. I do remember that Mark Twain said something like Congress is the only criminal class, and that seems about right to me.

 

Judge John Facciola: That seems about right too, yeah.

 

Sharon D. Nelson: But thank you very much for joining us. It’s been a great pleasure, a good conversation, and I think a lot of good pointers for people who maybe have not had the opportunity to attend some of the sessions that you taught over the years. Just very entertaining and very illuminating. Thank you very much for being with us today as our guest.

 

Judge John Facciola: Oh, it was my pleasure, thank you.

 

John W. Simek: Well that does it for this edition of Digital Detectives; and remember, you can subscribe to all of the editions of this podcasts at LegalTalkNetwork.com, or in iTunes. if you enjoyed this podcast, please review us on iTunes.

 

Sharon D. Nelson: And you could find out more about Sensei’s digital forensics, technology and security services at www.senseient.com. We’ll see you next time on Digital Detectives.

 

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