What’s Up With SCOTUS? The Shadow Docket, Accountability, And Justice

Episode Notes

Transcript

Dave Scriven-Young: We’d love to hear what you think about Litigation Radio. Please go to legaltalknetwork.com/litigation to fill out a quick survey to give us some feedback on the show. As a fellow litigator, I know you have strong opinions, so let us know what topics and guest are most important to you. Thanks so much for your help.

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Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a commercial and environmental litigator in the Chicago office of Peckar & Abramson which is recognized as the largest law firm serving the construction industry with 115 lawyers and 11 offices around the US. On this show, we talk to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients, and building a sustainable practice. Please be sure to subscribe to the podcast on your favorite podcasting app to make sure you’re getting updated with future episodes. This podcast is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the ABA. The Litigation Section provides litigators of all practice areas the resources we need to be successful advocates for our clients.  Learn more at ambar.org/litigation. The final days of the US Supreme Court’s latest term were marked by decisions that many see as amplifying the pullback by the conservative majority of the rights of certain minority groups. For example, the court effectively overruled affirmative action on June 29 and a day later permitted businesses to discriminate against LGBTQ folks based on religious belief. These rulings on the court’s merit dockets have caused many to call the court’s legitimacy into question and to discuss the current state of the court, I’m pleased to welcome Professor Stephen Vladeck to the show. Professor Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice.

He’s the author of The New York Times bestselling book ‘The Shadow Docket:  How The Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.’ He has argued over a dozen cases before the US Supreme Court, the Texas Supreme Court, and various lower federal, civilian, and military courts. Has testified before numerous congressional committees, executive agencies, and the Texas legislature, and has served as an expert witness both in US State and federal courts and in foreign tribunals. Professor Vladeck is the co-host of the National Security Law Podcast. He’s CNN’s Supreme Court analyst and editor and author of ‘One First’, a popular weekly newsletter about the Supreme Court.  Professor Vladeck, welcome to the show.

Stephen Vladeck: Thanks, David. It’s great to be with you.

Dave Scriven-Young: So what I love about your book ‘The Shadow Docket’ is that it gives a historical context for the points that you’re making and I guess my first question is, do you see the court in crisis with what’s happening with this new conservative majority or do you see it as basically a historical correction by this new majority?

Stephen Vladeck: So I think it’s a crisis, but it’s not the one people think. And so one of the real stories I’ve tried to tell in the book is a story that’s not just about the Supreme Court by reference to the decisions it hands down, but the Supreme Court as an institution and if you look at it that way, Dave, through that lens, I think what you really see when you look at the current court is less about the affirmative action decisions or 303 creative or the student loan decision, and more a court that is for better or for worse and I would argue for worse remarkably unaccountable and unbeholden to the political branches to a degree that is unique in American history. I mean, to a degree we’ve never seen before, where I don’t know that it’s quite so much that these are conservative justices doing conservative things. We’ve had conservative majorities before. Rather, it’s a court that is basically just unbound by anybody and not looking over its shoulder. And I think we’re seeing any number of places and contexts where that lack of accountability is producing what I think are bad symptoms for the court and for individual justice behavior all across the docket and even off the docket.

Dave Scriven-Young: And you do talk about that through your book, ‘The Shadow Docket.’ So tell us, for those of us who have well, I’ve read it, but for people who have not read the book, tell us what you mean by ‘The Shadow Docket.’

Stephen Vladeck: Sure. I mean, the term was coined in 2015 by Chicago law professor Will Baude. Will basically meant the term as a catch all reference to everything the Supreme Court does. All the rulings it hands down, other than the 60-ish big, lengthy, signed decisions and merits cases. We get each term and Will’s insight, which I’ve rather shamelessly appropriated is that there’s a lot of important stuff that happens through the rest of what the court does through orders that are typically unsigned and unexplained by volume. Dave right 99% of the court’s output comes through these unsigned, unexplained orders as opposed to the big, fancy merit rulings.

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But also, even though a lot of those orders are unimportant, are not necessarily sort of headline generating. A lot of them are. So part of the story the book tries to tell is a story about how we came to a point where we wake up in 2023 and we see a Supreme Court that’s in the middle of just about every divisive social, you know, policy issue in the country. That’s not how the court operated historically. It’s not how the court, I think, is at its best and yet it’s an undeniable future of where we are. So a big part of what the book tries to do is it tries to explain how it’s actually the rise of these orders and the rise of the court having control over so much of its work and its docket that is directly responsible for the place the Supreme Court occupies, for better or for worse in our contemporary policy and in our contemporary public policy space.

Dave Scriven-Young: And what I found interesting is the outsized role that Chief Justice and former President Taft had on the court, not somebody that people think of immediately when they think of people who’ve had great influence on the court. Tell us a little bit about what he did.

Stephen Vladeck: Yeah, I mean, this is chapter one of the book is kind of an ode to Taft. Taft is this remarkable figure because he really was a fairly middling president, but he has this remarkable second act, which is he’s chief justice almost a decade after he leaves the White House from 1921 to 1930 and even before he assumes that role, Taft had a vision for how he wanted to change the Supreme Court’s relationship with lower courts, with the other branches of government. Taft really was of the view that the Supreme Court was meant to be not just a Supreme Court of Appeals, not just the highest court to which every case goes, but actually more of a constitutional court that could operate above and apart from the fray of ordinary judicial business. A court that could pick and choose which cases it would hear and decide. A court that could control its agenda in ways that really until 1891, and for the most part till 1925, the court couldn’t and so Taft tries very hard, both before he’s the chief justice and once he’s chief justice to push congress to implement a series of reforms. Some of them are very technical reforms to which cases the court hears and how. The rise of what’s called certiorari the Supreme Court’s discretion to not hear a case. Dave, some of those reforms are architectural. It’s Taft who really leads the campaign to get the Supreme Court out of the Capitol, which is where it sat between 1810 and 1935 to get the court its own building, because how could this court be this independent autonomous branch of government if it was dependent upon congress literally to turn the lights on and just more fundamentally, it was Taft who really understood that the way to give the court power was to give the court discretion and that’s such an enormous part of the court today that I think a lot of contemporary lawyers and law students are actually kind of surprised to encounter this history about how, as recently as 100 years ago, it was very, very different.

Dave Scriven-Young: And so tell us how, since we’ve seen historically, the court has wanted to change kind of what they’re doing in terms of their practice and lobbied congress to do so. How has the current court kind of taken those procedures and laws and kind of made it their own and put us in the position where at least your book argues there is becoming the crisis.

Stephen Vladeck: Sure, Taft is the sort of the progenitor of most of the biggest reforms, but actually, this conversation continues throughout most of the 20th century, and it’s really not until 1988 that congress finally gives the court just about complete control over its docket. Not coincidentally, the 1980s are also when we see the rise of the full court using a particular type of order, an application for emergency relief, basically, before a case gets to the Supreme Court when a party is asking the justices to adjust the status quo for the duration of the litigation. It’s also the 1980s, where, at least in the context of executions and the death penalty, we see the court becoming much more aggressive and how it uses those kinds of rulings and so it’s really, Dave, the crescendo starts to build in the late 1980s. It builds throughout the 1990s toward a court that can basically do what it wants when it wants toward a court that feels increasingly unbeholden to the other branches, unnecessary to explain itself even when it hands down big rulings that have potentially controversial effects.

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And, you know, I think some of that gets muted for much of the early 2010s because you still had a meaningful center on the court.  You still had, at least fora time, Justice Sandra Day O’Connor.  You had Justice Kennedy till 2018 but when Kennedy retires in 2018, I think all of a sudden, what had been there for decades became very visible because now there was no longer a moderating force in the middle of the court now whenever five or six justices after Justice Barrett has confirmed want to do something, no one can stop them.  That’s true on the docket, Dave.  It’s true with regard to emergency applications.  It’s true with regard to which cases the court’s hearing and I think we’re also seeing it’s increasingly true in the ethics space where we’re having a very similar conversation of the lack of accountability when it comes to alleged improprieties on the part of at least some of the justices.

Dave Scriven-Young: I think one of the examples you give in the book is the last execution that was conducted or performed, I guess, through the Trump administration, and that came through one of these orders in the Supreme Court. Could you tell us more about that?

Stephen Vladeck: Sure. President Trump, in his last six months in office, pushed through a series of 13 federal executions. It had been 17 years since the federal government had executed anybody. It had been actually only three executions in the prior 60 years but Trump really sort of puts the pedal to the metal on clearing out the federal death row and the Supreme Court is very much a part of that. In all 13 of those cases, there was an emergency application that the Supreme Court resolved before the execution could go forward and in seven of them, the court actually cleared the way for an execution that a lower federal court had blocked. And as you say, the last one of those, the case of a guy named Dustin Higgs, is pretty emblematic of what the court was doing. So in Higgs’s case, you had this really sort of almost law school hypothetical problem where Higgs had been convicted of a capital offense by a federal district court in Maryland at a time when Maryland had the death penalty. And so, under a statute called the Federal Death Penalty Act, the federal government supposed to follow the procedures of the state in which the conviction was obtained.

If that state has the death penalty, otherwise, at the time of conviction, the judge is supposed to designate another state. Well, Maryland had the death penalty when Higgs was convicted but then subsequently abolished it and so there’s this very sort of just never previously answered question of what’s supposed to happen? What is the procedure supposed to be for deciding the execution procedures in a case like that, the district court in Maryland sort of threw up its hands and said, “we don’t know.” The Fourth Circuit, the federal appeals court expedited the appeal scheduled argument about two weeks after the appeal was filed. The tricky part, though, is that the argument was set for Friday, January 22, 2021 and so the Trump administration goes to the Supreme Court and says, we don’t want to wait for the oral argument in the Fourth Circuit. The sort of the unspoken but very clear message being by then we won’t be president anymore. Biden will be in office and he might commute the death sentence and in this remarkable order, the Supreme Court agrees. It grants something called certiorari before judgment. So it doesn’t just unblock the lower court state of execution. It actually summarily resolves the merits of this question, the merits of the case of which state’s procedures should apply to Higgs execution by decreeing with no analysis that it’ll be Indiana’s procedures, because lo and behold, that’s where the federal execution chamber is and Dave, what’s so remarkable about that is there was no substantive justification for the Supreme Court to jump over the Fourth Circuit.  The court didn’t provide any explanation of why it was jumping over the Fourth Circuit and so it at least looks like the only reason why the court intervened is because President Biden was going to be president in five days, and the court wanted Trump to be able to carry out one last execution before President Biden came along. That would be a pretty horrible reason for the Supreme Court to rule if it explained itself and the lack of an explanation makes it increasingly possible for those who are skeptical of the court to believe that that’s the only real explanation there is.

Dave Scriven-Young: It’s interesting because you talk about accountability and justifications and certainly one point that’s important for us to remember is with these emergency orders, unsigned orders, unexplained orders, is there’s really no justification given to the public justification or reasoning given to even lower courts who are looking to the Supreme Court for guidance. So when a lot of these orders come down, the lower courts don’t even know necessarily what they mean but sometimes they look at it and think, well, it implies that the court may be looking going in this direction and there have been some examples in history where the lower courts have done that.

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Stephen Vladeck: That’s right. One of the pieces that the book, I think, really drives home to folks who may not have followed the cases that carefully is historically one of the defenses the Supreme Court has articulated for why it’s okay to hand down these unsigned, unexplained orders is because they’re not supposed to have any downstream effects. They’re not supposed to be precedents but at least in the context of COVID cases, which the court had a bunch of in the fall and winter of 2020 and early 2021, we actually saw the court for the first time treating unsigned, unexplained orders as precedents lower courts and government officials were bound to follow and Dave, it’s kind of hard to figure out if you’re the 9th Circuit or if you’re the Governor of California and the Supreme Court has just blocked COVID mitigation measures without telling you what was wrong with them. What is the precedent you’re following? There’s a remarkable order from February 2021 in a case called Gateway City Church about, I think it was Santa Clara County’s COVID restrictions, where the Supreme Court yells at the 9th Circuit, says the 9th Circuit — the decision in this case was clearly dictated by our ruling in an earlier case, Dave, in which there was no majority opinion and so, you know, part of what I really tried to use the book to demonstrate is that this is not normal behavior from the court.  This is know — whatever you think of the bottom lines in these cases and reasonable people can disagree about them.

This is not sort of a process that lends itself to legitimacy and the justices themselves are very fond of saying that what makes them legitimate, what gives the court moral authority, is their ability to provide principled justifications for their decision making not because we’re necessarily going to agree with their principles, but at least because hopefully we’ll agree that they are principles and yet when there are no principles when there’s no analysis, it really does look like the justices are just voting their policy preferences and that pattern is also reflected in just how homogeneously ideological so many of these rulings are. You don’t see strange bedfellows in these emergency application rulings.

So that’s a big part of how I think over the last couple of years, the court’s behavior has been a symptom of this broader disease and one that the book really tries to help folks who may not be as sort of day by day into the ups and downs of the Supreme Court, see with their own eyes.

Dave Scriven-Young: And who is the audience for this book? I mean, obviously it’s interesting to get that historical perspective, but in terms of trying to influence the policy and influence what’s happening on the court. Obviously there’s a congressional possibility in terms of changing legislation, who do you see as kind of the folks that you’re trying to influence with this book?

Stephen Vladeck: Yeah, frankly, this is a bit of hubris on my part, but everybody. I hope that the justices, even if they don’t read the book, they at least are exposed to some of the arguments in it. I think we’ve already seen at least a little bit of changed behavior from, for example, Justices Barrett and Kavanaugh in the last 18 months. I hope congress starts to take more control again over the Supreme Court’s docket to assert more institutional authority over the court and not just partisan attacks on the court but more fundamentally, I really, really want the book to appeal to and to be accessible to people who are interested in the Supreme Court but who aren’t necessarily sort of well-read on it, who aren’t necessarily able to cite chapter and verse on every jot and tittle of the court’s history because I actually think that there’s way too much of our contemporary understanding of the Supreme Court that is presentist and that sort of takes for granted all of the powers that congress has given — that the Court has taken over the years. Whereas, Dave, if we take a step back, if we look at the court in its proper historical context, I think it’s much easier for even those who are more sympathetic to the current majority to see how we’re at an aberrational moment and to see how maybe there are reforms that would not prevent this court from issuing the merit rules it’s going to issue but that could restore a healthier, inner branch dynamic between the court and the other branches, one in which we don’t have this concern of a runaway court that sees itself as being above any accountability for anything.

Dave Scriven-Young: There does seem to be kind of a question between what congress can do and maintaining what — we in the ABA, I think, like to talk about a lot which is judicial independence.

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To allow the court and judges in general to do what they do best and to take up their dockets in the way that they think should be done.  How do you kind of resolve or think about that contrast between asserting jurisdiction or influence over the court and then maintaining judicial independence?

Stephen Vladeck: I think they don’t have to be mutually exclusive and judicial independence was never supposed to mean judicial unaccountability.  Just the same, that the independence of the executive branch does not mean that the executive is unaccountable and this again is where I think the historical context is so important in telling the story. The Supreme Court until 1891 couldn’t hear any cases except those congress told it to. The Supreme Court didn’t even sit in 1802 because congress said it couldn’t. Congress has controlled the court’s budget. Congress has controlled the court’s docket and I’m the first person to say there are limits. Congress cannot tell the court how to rule in specific cases, as the court held in an old 1872 case called The United States versus Klein. I don’t think congress can use its powers over the court as a way of sort of achieving specific substantive results but the whole point of giving unelected judges the power that we give them is that they would still be dependent upon the political branches for enforcement of their judgments and for everything that comes before that and I think we’ve lost sight of just how symbiotic the relationship is, where both sides of the equation need each other.

If the Supreme Court — without any help from congress, had congress never done a thing. The Supreme Court today would have a single justice because congress created the rest of the seats. It would have no budget, it would have no building I mean, just the list goes on of all the ways in which the court is already dependent upon congress to a much greater degree than we appreciate and that dependency is not supposed to make it inferior. That dependency is part of what Madison wrote about in ‘The Federalist’ when he says ambition must be made to counteract ambition, that the branches would push against each other as a way of keeping each other in check, rather than being these hermetically sealed, never interfacing silos and so as much as there’s sort of like a specific focus of the book on the court’s recent work if there’s a broader point that I really hope folks take away from it, it’s that we’ve lost sight of the dynamism and the inner branch pressures that characterize the relationship between the Supreme Court and the rest of our system for so much of its first 200 years and that that deficit, that development, has a lot more to do with where we are today than I think people realize.

Dave Scriven-Young: I guess it goes back to that old concept of checks and balances and I think a lot of people kind of forget that, perhaps, or they think that the only way that congress can check the Supreme Court or the federal judiciary is through impeachment but certainly, as you just outlined, there are a lot of ways that Congress could assert its — I don’t know check authority over the Supreme Court. What are some other ways that you’ve outlined that perhaps congress could check the power of the Supreme Court?

Stephen Vladeck: Well, I think congress could actually expand the court’s docket which counterintuitively, I think, would check the power of the court if the justices had to spend more time resolving cases that they wouldn’t otherwise have chosen to resolve, I think congress can sort of limit the court’s jurisdiction in some cases. There’s actually a rich history of congress imposing limits on the types of appeals the Supreme Court can hear. Actually, in the latest issue of my Supreme Court newsletter, I wrote about one of the most famous examples of this during reconstruction. A case called Ex Parte McCarthy congress can take more control over the rules the court applies to its case load. I mean, even the most sort of central rule of four, the idea that it takes four justices to grant a cert petition, to grant a discretionary appeal, Dave, is not written down anywhere. You know, there are lots of things big and small, just on the docket side. Congress could take more control over the court’s budget. I do think congress could impose at least some kind of ethics requirements on the justices and financial disclosure requirements on the justices. To me, part of the story here is just reminding everyone that there is a rich historical precedent for congress pulling any number of levers that may not look that conspicuous but that were meant for much of American history as a way of keeping the court at least generally and loosely in line.

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And the notion that today, any attempt to even reclaim those levers is castigated as an assault on judicial independence is, to me, just a sign of how much we’ve forgotten that history if we ever knew it in the first place.

Dave Scriven-Young: And why hasn’t congress acted? I mean, like now, we have Republican house mixed or Democratic senate, right? So it might be hard to get through congress now, but we’ve gone through Republican majorities, Democratic majorities in both houses. Why hasn’t congress acted in the past to reign in what the Supreme Court is up to?

Stephen Vladeck: I think this is a bigger story about congress which is not limited to the Supreme Court. I think we could tell a similar story about congress’ relationship with the executive branch but the basic point here is just that as congress has become more polarized as we’ve seen the demise of liberal Republicans and conservative Democrats, what that means is that now issues that used to be institutional turf wars between one branch of government and the other have become entirely partisan. So we don’t tend to see these days a Democratic controlled congress reigning in the power of a Democratic president. We don’t see a Republican controlled congress reigning in the power of a Republican president and that’s very much a result of what political scientists call the separation of parties replacing the separation of powers. I think that’s part of the broader issue here that really I hope we can start trying to reclaim some attention to which know one of the costs when congress abandons institutional responsibility in favor of whatever is in the best interests of short term partisan political preferences is that it really leaves the other two branches, the courts and the executive alike, free to arrogate power, free to abuse power and then to dismiss any attempt to reign them in as an — justified partisan assault on the branch as opposed to a deeply justified institutional attempt to reclaim power.

I think it’s a much bigger problem than just the moment we’re in but I also think that the more we can have conversations like this, the more we can talk about the institutional relationship between congress and the Supreme Court, maybe the more we can persuade folks that actually it’s in all of our interests in the long term for Congress controlled by any party to reassert at least a modicum of institutional leverage and control over a Supreme Court controlled by any particular ideological majority.

Dave Scriven-Young: Well, we are unfortunately coming to the end of our time together. Wondered if you had any kind of final thoughts for our listeners.

Stephen Vladeck: Just that I’m grateful that folks have even made it this far and that I really do aim in the book although it’s quite critical of the current court to suggest that this is not necessarily about good faith and bad faith. I think some of where we are today is actually a result of just broader institutional pressures readjusting and what that suggests is that we should be critical of the Supreme Court, we should be critical of our institutions without necessarily assuming that everyone’s acting in bad faith and that part of the way that we build faith, part of the way that we build, I think, consistency and support for the idea that this is about reforming the institution and not just cabining the power of who’s currently in charge is by putting this conversation into a broader context and so the more folks can be armed with that context, the more folks pay attention to that context, the more we talk about that context, I have to think the better off we all will be no matter what if any reforms come of it.

Dave Scriven-Young: Well, if folks wanted to reach out to you to continue that conversation, to ask questions or get additional information, where’s the best way for folks to find you?

Stephen Vladeck: Sure. So I am on the artist formerly known as Twitter. I’m at steve_vladeck and also on Threads. I guess we’re doing Threads now. You can also find me on — I’m pretty easy to Google. You can send me emails at [email protected] and I hope people will because I’m really interested in continuing this conversation as much as possible.

Dave Scriven-Young: Wonderful. Well, Professor Stephen Vladeck, thank you so much for being on the show today. Really appreciate it.

Stephen Vladeck: Thanks so much for having me.

Dave Scriven-Young: Thank you to Disco for sponsoring Litigation Radio. Disco makes the law work better for everyone with cutting edge solutions that leverage AI, cloud computing, and data analytics to help legal professionals accelerate e-discovery and document review. Learn more as csdisco.com and now it’s time for a quick tip from the ABA litigation section.  So let’s welcome back Darryl Wilson to the show. Darryl is the ABA Young Lawyers Division speaker for the 2023-24 bar year. In this role, he serves as the Chief Policy and Legislative officer overseeing the YLD Assembly. Thanks for being on the show again, Darryl.

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Darryl Wilson: Thanks a lot for having me, Dave.

Dave Scriven-Young: So let’s talk about discovery pitfalls with third-party collaboration apps.

Darryl Wilson: Thanks. Today, as you mentioned, we will discuss the discovery pitfalls that may arise from third-party collaboration apps such as Slack and Microsoft Teams. Slack and Teams are instant messaging programs that have been adapted by many corporations because it allows for easier, widespread communications between employees. These programs have access to company sensitive data that could be viewed as electronically stored information. Electronically stored information, or more commonly referred to as ESI, refers to data that is stored on electronic media that is subject to be used as evidence in litigation. ESI that is managed by third-party applications such as Slack and Teams have presented new legal challenges that we’ll discuss today. When companies desire to comply with discovery requests that may be served from opposing counsel, attorneys must be cognizant of the rules that evolve surrounding ESI. Today I want to talk about tips that one should consider not only as a lawyer, but also in corporations when using these third-party collaboration apps. The first tip that I have is that you should develop an understanding of these third-party collaboration applications and understand how the communications in these applications are discoverable. In many corporations it’s been brought to the forefront, I would say, surrounding the COVID-19 pandemic.

As many people were at home, we didn’t have the opportunities to run down the hall to our colleague’s office to discuss communications regarding the matters that you may be working on. So this is kind of when these third-party collaboration apps took off. Many corporations and even law firms began to utilize Slack and Teams to discuss matters in a conversation in a way that one would just send one message to another and you would be able to discuss these things. But one must know that these communications could be viewed and may be discoverable in litigation, so I would tell lawyers and also corporations that you want to know exactly how this data is being collected through these third-party collaboration apps. In some instances, you may be in channels, some instances you may have just a chat that may be moving forward and in some there’s a shared space for individuals to download and store documents or electronically stored information that may be available. The first thing that you want to do is really just have that understanding before you begin to use those third-party collaboration apps of just how significant of a role they could play in discovery when you may be presented with requests for production of documents or information. The next tip I would say is that you want to create a retention policy centered around this data.

As this is a new form of data collection or opportunities for individuals to discuss matters, you want to have the retention policy to determine how long this data should be stored, whether it be in the cloud or wherever you want to place it. You want to understand and know how this may affect your organization and create a retention policy that is centered around this storage space that may be available while a team member may have left your organization or someone that may be currently working there and how long this data can be kept as members discuss certain projects or litigations that may be surrounding your company. Next, I would tell people to utilize e-discovery vendors to assist in the data collection of these third-party apps. You don’t want to be in a space where you are providing these documents or providing these chat lines to your outside council. So you may want to focus in and lean in on your e-discovery vendors and their collection or data collection tools or software to be able to collect these resources or communications or chat lines or the channels or those team shared site that you may utilize within your organization. You don’t want to be in a space where you have a large number of documents that you may be submitting to your outside counsel. So the best way that I would say is to use a e-discovery vendor that will be able to collect this data and that’ll be able to call the data for you to determine what is discoverable and what isn’t discoverable through your use of these third-party collaboration apps. Next, I would say that you want to work with your counsel also to ensure that the production is limited to relevant information. As I discussed, we utilize these third-party collaboration apps just sometimes for just office banter. Sometimes we utilize them to discuss issues that maybe arising within your organization and then we also may use them for channels or team sites to store information that may be related to particular litigations.

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You want to ensure that as you use these sites and as you collect the data, that you’re using tools that will allow you to call through the data and only produce what is relevant because oftentimes when you get served with those discoveries and the request for production, it may say all electronically stored information. So you want to make sure that you are providing what is relevant, but sometimes that may include providing all data so that you can code through and determine what exactly is relevant to the particular litigation. My last tip is that as we have these third-party collaboration apps, you want to provide some training to your team members and the lawyers to ensure that they are aware that the communications on these resources are discoverable and that they can be used in litigation. So you want to be mindful of how you collaborate with your teams, how you converse with other members of your team and other lawyers. You want to make sure that as you do this that you are providing the information and that is discoverable and that you are looking into them and providing the training to individuals and having an understanding of maybe utilizing your privileges such as attorney-client privilege and making sure that that is clear in your communications if you are working on sensitive matters and you know that there may be a request for your ESI through these third-party collaborations such as Slack and Teams. So all in all, you want to be aware of how these applications work and how they may be utilized in discovery so that you don’t fall into one of the pitfalls that may be related to collecting ESI and fall afoul and find yourself receiving sanctions from the court because you do not properly collect, store and/or retain the information that is shared in these third-party collaboration apps. That will be the conclusion of my tips, and I thank you for having me here today, Dave.

Dave Scriven-Young: Of course and thanks for being on and great tips today and also congratulations on becoming YLD speaker, really exciting.

Darryl Wilson: Thank you. I appreciate that.

Dave Scriven-Young: Well, that’s all we have for our show today, and I’d love to hear your thoughts about today’s episode. If you have comments or a question you’d like for me to answer on an upcoming show, you can contact me at [email protected] and connect with me on social. I’m at attorney DSY on LinkedIn, Instagram, Twitter and Facebook. You can also connect with the ABA Litigation Section on those platforms as well, but as much as I’d like to connect with you online, nothing beats meeting you in person at one of our next Litigation Section events. So please make plans to join us at the Women in Litigation Joint CLE Conference in San Diego, taking place November 1st through the 3rd. Join us as we highlight women leading for success in the courtroom, in the judiciary, and in the profession. Programming will focus on trial skills, insurance litigation, products liability litigation, and securities litigation. Connect with leading litigators, judges and in-house counsel from around the country. To find out more and for registration info, go to ambar.org/litigateher. If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join the show and community. If you want to leave a review over at Apple podcasts, it’s incredibly helpful, even a quick rating at Spotify Podcasts is super helpful as well. Finally, I want to quickly thank some folks who make the show possible. Thanks to Michelle Oberts, who’s on staff with the Litigation Section for her help. Thanks also goes out to the co-chairs of the Litigation Section’s Audio Content Committee, Haley Maple and Tyler Trew. Thank you to the audio professionals from Legal Talk Network and last but not least, thank you so much for listening. I’ll see you next time.

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