Sunday, November 29, 2009

Will The U.S. Supreme Court Strike Down "Honest Services Fraud"?
Anti-corruption law: Supreme Court decision could derail ex-Gov. Rod Blagojevich's trial
Justices are asked to scale back or strike down prosecutors' key tool for public corruption cases

By David G. Savage,Tribune Newspapers, November 30, 2009

WASHINGTON -- The nation's most potent law against public corruption could be in danger of being scaled back or struck down by the Supreme Court, threatening a series of high-profile cases, including those of former Gov. Rod Blagojevich, (pictured above) the Washington lobbyists who worked for Jack Abramoff (pictured below testifying before the Senate Indian Affairs Committee)and several jailed corporate chiefs.

At issue in court arguments in early December is a ban on "honest-services fraud," (see full link copied below - Editor) often used against public officials who accept money, free tickets or well-paying jobs for their spouses and children in cases where bribery cannot be proved.

"In Chicago, this was our go-to statute. Every major public corruption case in the last 10 years relied heavily on an honest-services charge," said Patrick Collins, formerly a top anti-corruption prosecutor for U.S. Attorney Patrick Fitzgerald in Chicago. These cases include the conviction of former Gov. George Ryan.

The trial of Blagojevich is set to begin in June, but Collins said it could be derailed by a high court decision. "If the court were to gut the statute, the prosecution would have to think long and hard about how to restructure the case. (Honest-services fraud) is the core operating theory of the case," he said.

In Washington, anti-corruption activists fear the court's ruling could take away from prosecutors their best tool for combating the culture of gift giving and cozy deals between lobbyists and members of Congress and their staffs.

"It would undercut public corruption cases across the board," if the court struck down the law against honest-services fraud, said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington.

Opponents say honest-services fraud is vague and ill-defined. It fails to spell out, for example, the point when a friendship turns into a criminal scheme. Julian Solotorovsky, another former federal prosecutor in Chicago, said the court should strike down the law and force Congress to spell out what is a crime. "There is no vaguer statute on the books than this one," he said. "I'm surprised it's taken 21 years to get this before the Supreme Court."

In New York, the former state Senate Majority Leader Joseph Bruno is on trial in an honest-services fraud case for allegedly obtaining $3.2 million in private consulting fees from clients who had business before the legislature. His fate is before the jury.

Last month, a jury in Washington was told Abramoff's lobbying operation spent more than $5 million between 2000 and 2005 doling out free tickets to sporting events and concerts for members of Congress and their staffs. But the jury could not reach a verdict on a series of honest-services fraud charges against Kevin Ring, a former congressional staffer who worked for Abramoff. The judge put off a retrial until the Supreme Court rules on the law.

In recent decades the Supreme Court has made prosecuting public officials more difficult.

In 1987 the court threw out the use of mail fraud statutes against a Kentucky official who doled out the state's insurance business to his friends. However, there was no allegation that the deal resulted in a cost to the state's taxpayers. Congress responded by passing a one-line amendment saying a fraudulent scheme includes one to "deprive another of the intangible right of honest services."

In 1999 the justices limited the reach of another law against giving "illegal gratuities" to public officials because there was no proven link to "an official act."

Bribing a public official is also a crime, but it's hard to prove. Prosecutors must show an explicit deal between the official and the person offering the bribe.

In the two decades since Congress passed honest services, judges, prosecutors and defense lawyers have disagreed over its meaning.

In February, Justice Antonin Scalia sounded off in dissent when the court let stand the convictions of Robert Sorich and two other Chicago city officials for having schemed to steer city jobs to campaign workers. There was no allegation that Sorich and his co-conspirators had received any money.

Scalia said this open-ended law "invites abuse by headline-grabbing prosecutors" who can turn minor ethical lapses into a crime that carries a long prison term. Honest-services fraud is so broad it "would seemingly cover a salaried employee's phoning in sick to go to a ball game," he wrote.

Shortly afterward, the justices agreed to hear two appeals that call for paring back the law. In the first, Conrad Black, the jailed newspaper executive, argues that he cannot be held guilty of honest-services fraud unless it can be shown he intended to do economic harm to Hollinger International, the company he once headed. It formerly owned the Sun-Times.

And in Weyhrauch vs. U.S., a former Alaska legislator says he cannot be found guilty of fraud for failing to disclose that he had sought work with an oil services firm before he left the legislature. He did not get a job with the firm, but he did cast a vote in favor of the firm's position on a tax bill. Bruce Weyhrauch said the state's law did not require such disclosures, but federal prosecutors say he was still criminally dishonest. Both cases will be heard Dec. 8.

Last month, the court went further and agreed to hear a claim that the honest-services fraud law should be struck down entirely because it is unconstitutionally vague. The appeal came from former Enron CEO Jeff Skilling, who was convicted on multiple counts, including a fraud charge. Skilling says he was trying to save Enron from collapse, not defraud its shareholders. His case will be heard early next year.

The three cases have convinced lawyers that a major change is in the works.

Honest Services Fraud

In 1988, Congress modified the mail and wire-fraud law by making it a crime to defraud citizens of their intangible rights to honest and impartial government. Since then, an increasing number of government officials have been indicted for depriving others of their honest services. This includes a pair of miscreant judges in Pennsylvania. The doctrine is a tool that may enable citizens to hold judges accountable for their unlawful actions.

Fighting Corruption with the 'Honest Services' Doctrine
Lucy Morgan, January 25, 2009

It might be a good idea for public officials and those who lobby them in Florida to pay attention to what's going on in federal courtrooms around the nation. Especially state legislators.

Federal prosecutors are winning cases using a doctrine called "honest services" fraud. It's a broad way to fight public corruption.

In plain words, the law presumes a public official owes the public a duty of honest services. When the official fails and does so using the mail or telephones — or perhaps e-mail or BlackBerry — while concealing a financial interest, it becomes a crime.

In some states the law has been used to prosecute legislators who accepted jobs or gifts from lobbyists or institutions that receive public money.

Most of us are familiar with bribery and understand that it takes proof that a public official was willing to do something in return for a corrupt payment. But "honest services" fraud is easier to prove than outright bribery.

The change came about in 1988 when Congress specifically rewrote mail and wire fraud laws to include schemes designed to "deprive another of the intangible right of honest services.'' That decision came after the U.S. Supreme Court overruled lower courts and tossed out corruption charges against Kentucky officials, saying those laws did not prohibit schemes to defraud citizens of the intangible right to honest government.

As it frequently does, Congress reworked the statutes to make its intent clear in answer to a court ruling.

Convictions taken under the 1988 law have since been upheld by the U.S. Supreme Court and a number of appellate courts. "Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public's best interest,'' wrote the 11th U.S. Circuit in a 1999 case.

Some officials have been prosecuted for omitting income on their financial disclosure statements and voting against legislation affecting the income that was not disclosed. Others have been prosecuted for taking sham jobs with businesses and governmental agencies. A Missouri lawmaker was convicted after he accepted free lodging from an insurance lobbyist. And some have been prosecuted for making and taking campaign contributions in expectation of government action.

It's one of the reasons that public corruption indictments have risen more than 40 percent in the past two years, notes the American Bar Association's White Collar Crime Newsletter. Defense attorneys complain that the charge loads the deck against them, and appellate courts are divided. But hundreds of public officials have gone to jail on the charge.

The charges were among those brought against Washington lobbyist Jack Abramoff, U.S. Reps. William Jefferson and Randy "Duke" Cunningham and more recently in Palm Beach County corruption cases.

The way federal prosecutors see it, public officials have a duty to make decisions in the best interest of the people who elect them. When they make decisions based on personal interests, they are defrauding the public.

In one case, city employees were prosecuted after they structured the hiring and promotion system so that those who participated in the right political campaign got better jobs and more money.

A New Jersey lawmaker was convicted of the crime in November after he used his power and influence to obtain a $35,000-a-year job at a state School of Osteopathic Medicine after he helped steer $10-million in state grants to the school. A former dean at the medical school was also convicted of rigging the hiring process to create a job for the legislator.

Sound familiar?

There are some differences in the New Jersey case and the acceptance of a $110,000-a-year college job by Florida House Speaker Ray Sansom. The New Jersey official failed to disclose his job and funneled money to the college after going on the college payroll. On the day Sansom became speaker, Northwest Florida State College appointed him to an unadvertised job as vice president. A day later the college announced the appointment. Sansom had funneled millions of dollars in construction money to the college. He has denied any wrongdoing but resigned from the college earlier this month after news of the appointment created an uproar. Sansom did say he has consulted Peter Antonacci, a Tallahassee defense attorney who is a former statewide prosecutor.

One governmental lawyer who has been paying a lot of attention to honest services fraud cases is Leon County Attorney Herbert W.A. Thiele. He has written a lengthy memo on the subject and made presentations on the law for city and county officials around the state.

Thiele says he decided to look into the law after reading about the prosecutions in Palm Beach County.

His advice: "If you have to think about whether you should be doing it, maybe you shouldn't be doing it.''

Efforts to put an honest services fraud clause in to state law have so far been unsuccessful, but Sen. Dan Gelber, D-Miami Beach, says he is making another attempt to get legislative approval of the measure this year. Gelber, a former federal prosecutor, said it is a "useful tool that should be part of the arsenal that state prosecutors have."

A good look inside some of these cases might make Florida lawmakers and lobbyists thankful for the 2005 law that prohibits lobbyists from giving gifts to legislators. Assuming, of course, that everyone has obeyed the law.

You might also wonder: Is an honest services investigation in Tallahassee's future?

Acting U.S. Attorney Thomas Kirwin won't say. But some of Tallahassee's best defense attorneys admit they are boning up on the law. And they won't name the potential clients asking for help.

— About honest services fraud —

In 1988 Congress, reacting to a Supreme Court decision that tossed out convictions of Kentucky officials, added the phrase "intangible right of honest services" to mail and wire fraud law. The court had said the law did not prohibit schemes to defraud citizens of intangible rights to honest and impartial government. The code is 18 USC 1346. Congress specifically passed it to overturn the court's ruling in McNally vs. U.S., 483 US 350 1987.

— Who has been convicted of honest services fraud —

* Jack Abramoff, a Washington, D.C., lobbyist sentenced in September to four years in prison for corrupting politicians with golf junkets, expensive meals, luxury seats at sporting events and other gifts. He is also serving a sentence of almost six years in an unrelated fraud case involving a casino cruise line he purchased in Florida.

* Wayne R. Bryant, a former Democratic New Jersey state senator, was convicted in November of multiple corruption charges, including honest services fraud, for using his power and influence to obtain a low-show job at a state School of Osteopathic Medicine in exchange for bringing millions of dollars in extra funding to the school.

* Kevin Geddings, the former North Carolina lottery commissioner, a Democrat, was sentenced in 2006 to four years for concealing work done for a lottery vendor when he accepted a seat on the state lottery commission in 2005. He failed to disclose work for Scientific Games on his state ethics form.

* Jeff Skilling, the former Enron CEO, was sentenced in 2007 to 24 years in prison for depriving Enron of his honest services by using a widespread conspiracy to lie to investors about the company's financial health.

* Randy "Duke'' Cunningham, the former U.S. representative, R-Calif., was sentenced in March 2006 to eight years in prison after pleading guilty to multiple corruption charges involving his acceptance of more than $2.4-million in homes, yachts, antiques, Persian rugs and other items from defense contractors.

* Bob Ney, a former U.S. representative and Ohio Republican, was sentenced in 2007 to 30 months in prison after he admitted corruptly accepting luxury vacation trips, skybox seats at sporting events, campaign contributions and expensive meals from Abramoff.

* Don Siegelman, the former Alabama governor, a Democrat, was convicted of multiple charges involving a $500,000 contribution to his campaign to establish a lottery, allegedly in exchange for appointing the donor to a board that regulates hospitals. Sentenced to seven years but has been released pending an appeal after widespread publicity about the involvement of Republican operatives, including former White House political adviser Karl Rove.

* Mary McCarty, Palm Beach County Commissioner, a Republican, resigned earlier this month after admitting charges of honest services fraud involving the acceptance of discounts, free hotel stays and other undisclosed gifts provided by businesses doing business with the county. Four other city and county commissioners have been charged with similar crimes since 2006.

From: Lucy Morgan, "Fighting corruption with the 'honest services' doctrine," St. Petersburg Times, January 25, 2009,, accessed 01/29/09. Caryn Baird contributed to this report. Lucy Morgan is a Times senior correspondent and can be reached at This article first appeared in print on January 22, 2009. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Tulanelink thanks attorney Mark Adams for first calling attention to the doctrine of honest services fraud, and attorney Gary Zerman for updating its recent status (see note, below).

Note: The 'honest services' statute has been used to convict dozens of state and local governmental officials, but because it has been so effective, especially in high-profile cases, the Department of Justice has come under pressure to consider weakening its reach.

* Lynne Marek, "DOJ may rein in use of 'honest services' statute," The National Law Journal, June 15, 2009,, accessed 06/15/09.

DOJ may rein in use of 'honest services' statute
Lynne Marek, The National Law Journal, June 15, 2009

A key weapon in the arsenal of U.S. Attorney Patrick Fitzgerald and his prosecutors in Chicago has been a section of the federal anti-fraud statute that makes it a crime to deprive citizens or corporate shareholders of "honest services."

It's been used to convict dozens of state and local government officials, as well as newspaper magnate Conrad Black and former Gov. George Ryan of Illinois. Fitzgerald cited the honest services in the April indictment of another ex-Illinois governor, Rod Blagojevich.

But the U.S. Supreme Court's May decision to review Black's 2007 conviction may put the brakes on the honest services provision. The U.S. Department of Justice is likely to rein in use of the provision, 18 U.S.C. 1346, until the high court rules on Black's appeal next term, former federal prosecutors say. "Anytime that there's a high-profile review of a conviction, the department tends to just stop in its tracks, and this is a very high-profile review," said Matt Orwig, a partner and criminal defense attorney in the Dallas office of Sonnenschein Nath & Rosenthal and former U.S. attorney for the Eastern District of Texas. "There's going to have to be some very careful analysis of how they've approached these cases in the past."

Using the honest services section of the fraud statute allows prosecutors to charge defendants with robbing a general group of people, such as shareholders of a public company or residents of a state or city, of the honest fiduciary duties or government services they are due. It's typically used to shore up other fraud counts, but increasingly has been used as a primary count as well.

Orwig, who didn't recall using the charge when he was a U.S. attorney, said he thinks the section has been "over-used." It was the lead charge lodged by U.S. attorney offices against 79 suspects in fiscal year 2007, up from 63 in 2005 and 28 in 2000. (The Justice Department doesn't consistently track it as a secondary charge.)


Fitzgerald, the special counsel who won a conviction against vice presidential aide I. Lewis Libby Jr., so far is bucking the usual turnover for U.S. attorneys and is extending his eight-year stint in Chicago from the Republican Bush administration into the Democratic Obama administration.

Former federal prosecutors-turned-criminal defense lawyers in the Northern District of Illinois said they believe Fitzger­ald's office has been among the most aggressive in using the honest services charge. Although statistics show that his office used the law only twice in fiscal year 2007 as a lead charge, the office has often used the statute as a secondary allegation in cases targeting Illinois and Chicago officials for political corruption.

"The Northern District has argued for an aggressive interpretation of this statute on many occasions," said Robert Kent, a partner in the Chicago office of Baker & McKenzie who was formerly chief of the complex fraud section in the U.S. attorney's office there.

The office has met with success, posting an overall conviction rate for fiscal year 2008 of 96%, compared to the national rate of 92%. Randall Samborn, a spokesman for the office, declined to comment on use of the charge or the Black case.

The criminal defense lawyers said the Supreme Court is likely to focus on the second question presented by the Black petitioners: whether the law "applies to the conduct of a private individual whose alleged 'scheme to defraud' did not contemplate economic or other property harm to the private party to whom honest services were owed."

Black's Supreme Court counsel, Miguel Estrada of the Washington office of Gibson, Dunn & Crutcher, didn't return calls seeking comment, but argued in the petition that the "vagueness" of Section 1346 and differing appellate courts' interpretation of the law call out for Supreme Court clarification.

Solicitor General Elena Kagan contends in response that the law is clear: The government need not show that a defendant intended to deprive a victim of property or money, and the appellate courts differ only slightly in determining whether a given honest services fraud is "material."

The court's decision to grant certiorari in the Black case led to a release from prison of one of Black's three co-defendants, John Boultbee, and Black may resubmit a request for release in the Northern District of Illinois after Justice John Paul Stevens denied his request for release on bail on June 11.

The defendants argue that the Supreme Court may very well overturn their three mail fraud convictions. Black's counsel contends that he would then have to be retried on the only other outstanding charge against him, an obstruction of justice charge, because of the "highly inflammatory evidence" presented in support of the fraud counts.

In the case, prosecutors charged Black and his fellow executives from Hollinger International Inc., publisher of the Chicago Sun-Times and other newspapers, with fraud for pocketing money from bogus noncompete agreements drawn up when the company was selling off its smaller newspapers in the 1990s. Prosecutors argued that millions of dollars should have gone to shareholders of the company. Black was convicted by a jury on four of the 13 counts against him.

U.S. attorney's offices will pursue "honest services" infractions much more carefully while Black's case is pending before the high court to avoid having cases overturned in the future, the criminal defense lawyers said. Prosecutors are more likely to use it to shore up other charges or avoid it altogether, they said. "It's likely to mean that prosecutors will only use it in the circumstances that every court agrees it would work — that way they'll have some level of confidence no matter what happens," Kent said. "At this point, it would be risky to do anything else."

Still, in cases such as the one against Blagojevich, which includes a host of other criminal charges, anticipation of the Supreme Court's decision on Black is unlikely to make a difference, the lawyers said.


Justice Antonin Scalia in February dissented when the Supreme Court declined to grant certiorari in another honest services conviction case against a top aide to Chicago Mayor Richard Daley, also prosecuted by Fitzgerald's office. In his dissent, he said that not taking the case allowed "the current chaos" in application of the statute to prevail. Now it seems Scalia has managed to win over three additional justices on the honest services issue with respect to the Black case.

"They need some sharper definition," said Mark Rotert, a Chicago criminal defense attorney at Stetler & Duffy and a former federal prosecutor who was once chief of the major crimes division in Chicago's U.S. attorney's office. "There are some real questions about...the appropriate reach of the criminal statute."

Scalia in his dissent regarding the case of Daley aide Robert Sorich said that the circuits are clearly divided on how to interpret the honest services section. The U.S. Court of Appeals for the 5th Circuit has held that the statute criminalizes only the unlawful deprivation of services, though other courts have disagreed with that, he stated. The 7th Circuit has read the statute to prohibit the abuse of a post for private gain, while some circuits don't see such a gain as part of the crime, he said.

"Without some coherent limiting principle to define what the 'intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct," Scalia wrote.

At the core of the issue is the notion that would-be defendants have a right of due process that provides clarity in the laws that they are expected to obey, said criminal defense attorneys.

This isn't the first time that the Court has wrestled with the statute. In its 1987 ruling in McNally v. U.S. , the Supreme Court dismissed prosecutors' and courts' widely held view that the mail fraud statute could be used to fight public corruption and misconduct on the basis that citizens had an 'intangible right' to good government. Congress the following year enacted the honest services section to revive the practice of prosecuting under that right.

"The confusion arises in part from the fact that the law appears to apply differently to public officials and private individuals," said John Cline, a partner in Jones Day's San Francisco office who represented Sorich in his appeal. "It will be interesting to see if the Supreme Court tries to develop a unified standard for the two types of cases."

Some attorneys expect the high court to rule narrowly on the application of the law to private individuals, such as corporate chieftains like Black and avoid weighing in on circumstances related to public officials, at least for now.

Lynne Marek can be contacted at

Saturday, November 21, 2009

Criminal Acts of Two Judges Who Incarcerated Juveniles Are Immune From Prosecution

November 21
Case law cited in immunity ruling
Caputo: 1607 “seminal case” of judge determined “modern policies” of immunity.
By Mark Guydish
Education Reporter

How could two judges accused of accepting millions for actions that led to increased incarceration of juveniles be immune from a lawsuit?

U.S. District Judge Richard Caputo seems to have anticipated the question – and anger – when he penned his opinion explaining the ruling, going into considerable detail on the case law that supports his decision.

He cites a 1990 ruling in San Diego that noted “as a historical matter, the doctrine of judicial immunity arose in response to the creation of the right of appeal. In the 10th and 11th centuries in England, when no right of appeal existed, losing litigants could challenge unfavorable judgments on the ground that they were false …. [O]nce appeal became available, judicial immunity was gradually accepted under the common law.”

The “seminal case” occurred in 1607 when an English judge determined “what are now considered some of the modern policies that underlie the doctrine of judicial immunity.” It ensures finality of judgments, protects judicial independence, avoids continual attacks upon judges who may be sincere in their conduct, and “protects the system of justice from falling into disrepute.”

As the doctrine evolved, courts determined it applies as long as the judge in question had jurisdiction. The first big case involving judicial immunity in the United States was Bradley vs. Fisher in 1871, when an attorney sued a judge who had “effectively disbarred him for rude and contemptuous behavior” in court. The U.S. Supreme court agreed that the judge had been too harsh, but that motives of a judge cannot “be the subject of judicial inquiry.”

Caputo then cites a 1967 case, Pierson vs. Ray, in which a judge was accused of making decisions based on racial discrimination. The U.S. Supreme Court made the landmark ruling that “immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”

A 1978 Supreme Court ruling in Stump vs. Sparkman “expanded upon the requirement of a judicial act” stating that it is “the nature of the function performed, not the identity of the actor who performed it” that informs the immunity analysis.” A circuit court had granted a mother’s petition to have her 15-year-old daughter sterilized, and the daughter had argued the ruling was “so totally devoid of judicial concern” for her well-being “as to disqualify it as a judicial act.” The Supreme Court disagreed.

In a 1980 case (Dennis vs. Sparks) with direct impact on Caputo’s decision, the Supreme Court ruled that a judge accused of corruptly granting an injunction regarding oil leases was immune, but conspiring parties could still be liable. Caputo has similarly ruled conspiring parties in the current corruption probe are not fully immune.

The most recent Supreme Court ruling on judicial immunity was Mireles vs. Waco, in which the plaintiff alleged a judge had ordered police to forcibly bring him from another courtroom, authorized the use of unreasonable force, and called the plaintiff vulgar names. An appeals court had found the alleged conduct “not a judicial act,” but the Supreme Court reversed that ruling, further expanding the definition of a judicial act, which is protected by immunity. Caputo has ruled that some alleged actions in the lawsuit do not qualify as judicial acts and are not protected by immunity, a fact the plaintiffs’ attorneys embraced as a victory.

Caputo cites two cases in which the Supreme Court ruled immunity did not apply. In a 1988 case (Forrester vs. White), a judge was not immune from charges stemming from firing a probation officer. The Court ruled this was an administrative act, not a judicial one. The other involved a “judicial-like” committee, not a judge.

Caputo determined that arguments put forth by the plaintiffs in an effort to deny immunity to ex-county judges Mark Ciavarella and Michael Conahan failed to meet any of the narrow situations in which the Supreme Court has determined judicial immunity did not apply. In fact, he noted the actions of the two judges were similar to those of judges granted immunity in the prior cases.

Conahan’s granting of an injunction to block release of a state report that criticized the county’s dealings with a private detention center was similar to the situation in Dennis vs. Sparks, Caputo noted.

“As to Ciavarella, focusing only on the nature of the act performed, as I am required to do by law, I also find that the determinations of delinquency and the sentences imposed were judicial acts,” Caputo wrote.

However, Conahan’s alleged signing of a “placement agreement” guaranteeing more than a million dollars would flow to the detention center by sending children there was an administrative act, as was his successful effort to cut funding for the county-owned detention center, essentially forcing its closure, which increased demand for placement in the private facility.

“Plaintiffs have argued that such egregious actions demand a contrary result. They argue that the conduct is so contemptible that immunity should not be available. They also note Ciavarella’s admission that he did some, if not all, of the acts for which he was indicted and suggest that this fact renders judicial immunity unavailable. They argue further that immunity should be available only for honest mistakes. And that failing such, the doctrine of immunity should not apply.

“Case law establishes that the availability of immunity is not determined by a sliding scale. The degree of corrupt behavior is not the touchstone of the immunity doctrine’s application. The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit.”

Ralph Losey and Judge Shira Scheindlin On E-Discovery and The Law

Judge Shira Scheindlin and I Speak on e-Discovery and Education
Ralph Losey

Judge Shira Scheindlin (pictured above) and I did a one-hour audio podcast last week on e-Discovery and Education. The focus of our talk was on the need of students and

lawyers to master e-discovery and the resources available to help them to do that, including Judge Scheindlin’s new text books co-written with Professor Daniel Capra and The Sedona Conference, entitled Electronic Discovery and Digital Evidence: Cases and Materials (West 2009), and Supplementary Materials on Electronic Discovery: For Use in Civil Procedure Courses,

and my two books, Introduction to e-Discovery (ABA 2009) and e-Discovery: Current Trends and Cases (ABA 2008).

Judge Scheindlin also mentioned another book she co-wrote with Professor Capra, which will be released soon by West as part of its Nutshell series. It is designed to simplify e-discovery for general practitioners.

The presentation Judge Scheindlin and I made was in the form of a spontaneous, unrehearsed interview conducted by a well-known e-discovery entrepreneur, Karl A. Schieneman (pictured at right).

The podcast can be downloaded for free from Karl’s new web,, or you can read on, as most of this week’s blog consists of my transcript of this podcast.

Judge Shira Scheindlin used her lunch break in the middle of a jury trial to give this interview. I was honored to be asked by her to participate. We discussed our nearly identical views on the urgent need for improved e-discovery education and the crises of competence now faced by the legal profession. If you have any doubt about the crises, you have only to look at the steady stream of new judicial opinions demonstrating attorney negligence and refusal to cooperate on simple technical matters, all to the detriment of clients. The latest poster child case for this sad state of affaris comes out of my home court in Orlando in a well written opinion by Magistrate Judge Karla Spaulding. Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009).

In Bray & Gillespie, one of the largest law firms in the world, and two of its attorneys, are personally sanctioned for a series of blunders and unnecessary fights over metadata. The court found the plaintiff’s lawyers were to blame for stripping metadata from the native files that the client had properly collected. The attorneys refused to produce in native as requested; instead, producing 200,000 unsearchable Tiff files. See Story of the Poor Bunny and my prior article Should You “Go Native”? These actions forced the court to have two evidentiary hearings concerning what was supposedly agreed to by the attorneys at the 26(f) meet and greet conference. Judge Spaulding also heard testimony from a number of experts to cut through the elaborate smoke screens used to try to justify the excessive gamesmanship here. This 51 page opinion should be studied by everyone looking to see what happens when you play discovery the old fashioned hardball way and flaunt cooperation and technical understanding. Bray & Gillespie shows the crises of competence, even in the best law firms. It should be a wakeup call to upper management in law firms everywhere to get their litigators under control and educated about e-discovery, or face the imposition of monetary sanctions (and embarrassment) against your firm.

Getting back to the podcast, although the Judge and I focused our dialogue on education, the topics discussed went well beyond that, including how Judge Scheindlin first became interested in e-discovery, the conflation of a legal and technical education (it troubles her), the advantages of young lawyers over senior partners, and even the dangers of jurors who use Google and Facebook during trial to investigate the case.

Judge Scheindlin said a lot of interesting things, including a quote that should be read by every litigation attorney in America who still thinks e-discovery is just a passing fad and can be ignored:

We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery.

At the end of the podcast Judge Scheindlin made an important statement on what a party should do when faced with overly-expensive discovery. These quotes will be repeated again in the full transcript below, but her remarks are so important that they bear repetition:

JUDGE: Do you disagree with what I said, Ralph, or do you think it’s right on? [referring to a long statement she just made about what she thinks is the most important topic in e-discovery today, namely search and better use of technology]

RALPH: Uh no, that is very important. And I would just phrase it a little differently insofar as the primary thing I’ve found myself coming back to and explaining to the law students particularly is related to that. And that is the whole notion of proportionality, of scale, and of the importance of understanding Rule 26 (b)(2)(C) in achieving a balance between the value of a case, the importance of the case, and what the cost may be in the different kinds of information available. This is the kind of thing that you address so well in Zubulake and other cases. I mean, this is the fundamental thing that I think many lawyers have lost track of. They’ve gotten so involved in the chase, they aren’t coming back to the fundamental question: should I really be spending a million dollars to track down email when on the best day this case is only worth two million dollars? Is that the right thing, is that fair or does that comply with the requirement of a just and quick adjudication of justice? I’m trying to drill that in everyone’s head, and also the notion that discovery is not a field where there should be unnecessary contests. It should be a cooperative search for the truth and, you know, that kind of goes hand-in-hand. Let’s put the facts on the table and then just argue with what the facts mean. There’s plenty of room for adversarial arguments in the presentations to judge and jury, but not about technical things like metadata, do you need it or not; you know, let’s get real with that.

JUDGE: Well Ralph, I’d like to for just a moment challenge a little piece of what you said. You know, you don’t want to spend, you said, a million dollars on discovery when the case is at best worth two million. But what do you do when you are the defendant and you’re not there voluntarily, and you’re being asked to produce information. Are you saying that rather than spend that money you ought to throw in the towel and just settle the case? Because I’m worried, and many people are worried, about the high cost of e-discovery allowing extortion to occur in a settlement. Because from a defense perspective, you don’t have a choice. You have to spend what it takes to properly respond to the request. You must do it. You can’t just say, “Well it’s too expensive. I can’t do this.” You have to do it. You can try to seek cost shifting, you can try to involve the court in apportioning cost. By the end of the day you either do it or you’re going to pay it in a settlement. And I know there’s been a fear, I hear it all the time in The Bar, that the cost of e-discovery is shifting the ground in terms of the ability to extort settlements. And I’d like to hear what you think of that.

David and Goliath - in e-discovery David may have a distinct advantageRALPH: Well I’m glad to hear your concern about that. I share that concern, as I am primarily doing defense work. Of course, in e-discovery it’s not so much defense as it is requester or producer, and the producing party if it’s a larger corporation, David and Goliath, can be behind the eight ball. But I do think that a large company is entitled to protection and that there is no need to try and find every piece of relevant email, but you should instead scale your search. We should be thinking in terms, as I know you do, of rolling productions in a series. Let’s start off – let’s see what we can get in an economical manner and produce that first, and then come back with secondary, more focused discovery. Because, you know, I don’t think you should have to spend a million dollars to find electronic evidence if the case is two million. I think that’s where you go immediately for protection and do not allow yourself to be extorted by the cost of a lawsuit.

JUDGE: But that’s the key point. You can’t use self-help. You either go for protection by coming to court or you comply. But you can’t take the middle ground and just ignore it, put your head in the sand, do it half way and then say, “Well the reason I didn’t do better is it was too expensive.” That’s what you can’t do and that’s where I think a lot of lawyers make a mistake

That last statement by Judge Scheindlin is right on. Of course, that means immediately applying to the court for relief, or in the case of requests for production, serving detailed, custom objections (not boilerplate), and placing the burden on the requesting party to seek agreement or relief. Either way, this means more work and burden for the judiciary, but the alternative of self-help, non-communication is way too risky, as this statement by Judge Scheindlin verifies. If you wait, you are likely to lose. The only way out of the proportionality and discovery extortion dilemma is for Golaith to reach an agreement with David, or failing that, the parties asking the court for relief. Otherwise, you may lose your head and fall victim to extortion-high settlements.

David with Goliath's head

Yes, this was a very interesting dialogue as guided by our interviewer, Karl Scheineman. Although Karl is just getting started in this e-discovery interview series, he has already interviewed Judge Facciola, Jonathan Redgrave, James Daley, Ron Hedges, and others. He has many more good interviews scheduled for the near future, including Craig Ball, Richard Braman, and Sherry Harris, and even one with me alone. Karl does this as a public service, meaning for free, much like my blog. His day job is with Jurinnov, where he is the Director of Legal Analytics and Document Review.

So, without further ado, here is the transcript of the audio interview, with just a bit of cleanup up to make it easier to read. Also, I have omitted the initial introductions by Karl of the Judge and me, since I do not think that is necessary here.

KARL: First of all, Judge Scheindlin, why did you become interested in electronic discovery?

JUDGE: Well it started out with my tenure as a member of the Advisory Committee on Civil Rules. At that time we were taking up some rule changes that had nothing to do with e-discovery, and I remember receiving a comment from a lawyer that said, “it’s nice that you’re doing what you’re doing but the real issue that the rules Committee had better turn to soon is electronic discovery,” and it was like a head’s up. Nobody had ever heard about this. It was quite a while back, I would say 1999, a number of years back, 10-years now – a decade. This lawyer was prescient. And I said, “Well, I’m going to jump on his suggestion. I’m gonna just throw myself into it.” So I wrote an article way back then, probably 2000, about whether Rule 34 as it was then written was sufficient. And I found that it wasn’t, and one thing then lead to another and the Rules Committee, as you know, then spent six years debating and drafting and eventually adopting a new set of Rules. So that’s the history for me.

KARL: Ralph, same question.

RALPH: Well I started back with computers going back to law school days in the late ‘70s, but insofar as a separate discipline, it wasn’t until Judge Scheindlin wrote Zubulake that I realized this needed to now be a specialty. So I have a debt to you, Judge.

JUDGE: Thank you.

KARL: And I do, too. I came up with that bottle of wine label based on the Zubulake opinion which I have sitting on my desk behind me. Thank you for autographing it, Judge Scheindlin.

JUDGE: Right.

KARL: Okay. Well now it’s been two years since the Federal Rules were adopted, four years since your landmark decision in Zubulake, for both of you, do you think we’re making progress in electronic discovery?

JUDGE: Well I do. First of all, it has been two years since the new Federal Rules regarding e-discovery went into effect, but they’ve been in the public eye for more than two years because they were in draft and there was public comment, and everybody knew they were coming. So in a way they’ve been out there four years. And then the earliest Zubulake decision was 2003, so that’s been six years. So I would say, you know, we are in that range of four to six years, and now everybody knows about e-discovery. There’s nowhere in the Country that you can go where attorneys and judges aren’t aware at least of the problem and of methods for addressing the problem. So it’s in everybody’s consciousness, and to that extent, we are making progress. Discovery lawyers do routinely discuss this now in their meet and confers, they do try to work out solutions. The court doesn’t always see the problems because I think counsel are handling it. But it is a new world; most records are created electronically not on paper, and everybody’s dealing with it. Whether everybody’s up to speed enough is a different issue, particularly with respect to effective search techniques and cost issues. Maybe not everybody’s up to the same level of speed, but everybody’s aware of the problem. That’s a good thing. I might even add that our government is aware of it and you hear more and more now about the new administration having questions about electronic records, and the medical field and other fields. I would say we’ve made tremendous progress in the e-discovery area.

KARL: That’s great. Well jumping in to the …

JUDGE: Did Ralph want to answer that?

KARL: Ralph do you have anything to add to that?

Ralph Losey in his law office

RALPH: I agree totally with Judge Scheindlin on that. Consciousness raising-wise, we’ve done it, I think. But as to teaching skills, we still have a long way to go. I agree with her on that. I think that’s one reason the Judge and I both spend so much time writing, to try to facilitate some more in-depth study.

KARL: I know you have a new blog out constantly on this, so I know it’s something you have a deep passion for. Now Judge Scheindlin, let’s talk a little bit about the book you’ve recently written, the curriculum for law students called Electronic Discovery and Digital Evidence which you wrote with Professor Dan Capra from Fordham Law School and with help from the Sedona Conference. There’s a real creative blog post on the Internet called “Teach Your Children Well, a Case for Teaching E-discovery in Law Schools,” written by Shannon Capone Kirk and Kristin Alley. Why do you see the need, Judge Scheindlin, for law students to learn about electronic discovery?

JUDGE: Well, you know, there’s an old saying “softball up the middle,” that’s pressure was really softball up the middle. We just said that the practice of law today involves nothing but electronic records. We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery. As the world shifts to electronic records there are no paper records, and by the time today’s graduates become lawyers they will see hard copy as a thing of the past. Boxes, warehouses, sorting through paper – I really don’t think that’s going to be the way they’re going to practice. It’s all electronic. So if they don’t learn the techniques for working with electronics records efficiently, for thinking in advance about such things as form of production, search terms, search techniques, if they’re not up to speed they’re going to just fall out. I mean, they’re not going to cut it in the new world. Those of us who are a little older, shall I say modestly or immodestly, but it’s too late for us. We can’t really change completely. But for these young people coming out the world will change with them. So it must be taught in law schools. I think it would almost be malpractice for a law school to graduate a young lawyer these days and not have exposed them to the very important and fascinating issues of e-discovery. Ralph, do you agree with that?

RALPH: Totally. I was just going to be teaching law school again tomorrow at the University of Florida. I go up there once a week. And there’s real enthusiasm there, the students. Not only that, they get it so much better than the CLEs that I do.

JUDGE: Right.

RALPH: Plus they have the time to really study it and get it. I mean, it takes just for one semester – and we do a two-credit course which is typical of the law schools that offer it – you’re talking about 150 hours of dedicated study including the two hours a week classroom and three to four hours a week of reading assignments, and then preparing for the final exam. This is what it takes. It is a complicated subject and it’s frankly embarrassing that there are so few law schools that are now teaching it, but I think that will change soon particularly with Judge Scheindlin’s excellent course book and the books I’ve written. There’s now no excuse for law schools not to add it.

JUDGE: Well thank you. That’s one of the reasons I’ve decided, along with Professor Capra, to undertake a casebook because we felt that professors find it harder to teach a course when it’s brand new and there’s no casebook. Once you give them a casebook on a platter, it isn’t that hard, and we thought this would add the possibility of a course in electronic discovery to more law schools. We did a survey before we wrote the book, and believe it or not, it is offered in I think more schools than you think. We found about 40 courses all by adjuncts. But I think it’s going to catch on and I’m glad that Ralph agrees with that.

KARL: And you know I would say, anecdote only, there’s a lot of interest in this area since we basically shut down the circuit for the show on the initial attempt at the podcast and I sent this out to almost every law school in the Country this morning. Well given the importance of this, do you think the course should be a core course in law school just like torts, contracts, property and other courses that we’ve all taken?

JUDGE: Well no, actually, I don’t because there’ll be some areas of practice where a litigation skills course is not necessary; however, that said, if you’ll forgive me again for just a small plug, just today West has published a supplement that I’ve written along with Professor Capra called Supplementary Materials on Electronic Discovery: For Use in Civil Procedure Courses.

What it is, is kind of a reduced version of the casebook. So in every civil procedure course, if the professor – usually a full-time professor – wants to add a segment about electronic discovery, maybe a two or three week segment, they could have the students purchase the supplement as opposed to the casebook. And at least they could make sure that everybody gets a small exposure to e-discovery in the first year. So that I would advocate. I am sorry if these law schools are not on the phone but maybe they can catch the podcast another time, but I think civil procedure professors really should consider at least a segment of their one-year course being devoted to this. As far as a stand-alone course in the core curriculum, I don’t think that would be right because the lawyers who are going into other fields – corporate law, secured transactions or whatever – it’s not as important to focus on e-discovery as it is for litigators. So I look at it as a skills course much like trial practice, appellate advocacy, that type of course.

KARL: And I’m sure my old friend, Jim Michalowicz, would say, “Why not a course in electronic records management while we’re at it.”

JUDGE: Right.

KARL: The next text book. Hey Ralph, you didn’t have the benefit of the course materials from this book when you started teaching. How did you compile your course materials?

RALPH: The prior adjunct Professor, Bill Hamilton, started using my first book that came out last year; we’re now teaching e-discovery at U.F. for the third semester in a row. Students seem to like that book. We welcome the addition of the more academically oriented one that Professor Capra and Judge Scheindlin have created. But we also supplement the texts, as most of the adjuncts I’ve talked to do, by bringing in other practitioners as guest lecturers. For instance, we had Jason Baron (pictured below) at

the University of Florida a couple of weeks ago speaking about search and TREC, the scientific research that’s going on now about search. I think such guest lectures are also a good way to supplement textbooks. But I’ll tell you, there’s now a big hunger by law students for e-discovery – that might be one reason we flooded the switchboards – when we put our course up, it was offered this January for the semester, it sold out. We decided to cap it at 40 students. It was completely filled in a half hour of online registration. And the reason is, the students get it. They want and need this new knowledge to gain an advantage in getting a job and to get ahead in their law firms. That is why it is such a shame that most law schools are not offering it. They’re really disadvantaging their students by not providing them with the opportunity to learn e-discovery and apply the computer skills they already know to help themselves and the profession at the same time.

KARL: Judge Scheindlin, given that comment and understanding the book just recently came out, and law schools tend to go on a regimented, you know, it’s time to do our course the year beforehand getting it slotted, are you getting any feedback on how your book is being received from law schools?

JUDGE: You mean now the casebook, not the …

KARL: The casebook, yes.

JUDGE: Not the Supplement which is just coming out. Well you know, the casebook wasn’t published till December so we just got it out barely a few weeks before the spring semester, so we didn’t have too much hope that it would be picked up for courses in the spring semester. But I am hoping as people hear about the existence of the casebook, and that’s really not for me to publicize, but if West Publishing is talking – I guess called Thompson Reuters now but , that’s their publisher – if they’re meeting with law schools, their representatives are meeting with law schools, word-of-mouth is good, but hopefully as the schools become aware of it, it will be used. I can’t say that, I mean, I hope it is.

Magistrate Judge John Facciola in Wash. D.C.

KARL: I just did a podcast about a week and a half ago with Judge Facciola, and he’s deeply concerned that lawyers need to learn something about electronic discovery if they’re litigators, or else they’re really risking malpractice. In fact, he gave a couple of examples of what he thought were pretty darn close to malpractice committed in his courtroom. Do you see that same type of need from your perspective on the bench?

JUDGE: Well yes, I mean, that’s why CLEs have been so popular in the electronic discovery area, and I will say there are many publications. Obviously Ralph Losey is a real leader in this field having published and published, but there are plenty of books out there. Just, of course, to add to the library shelf, I am coming out with a third book with Professor Capra and that will be a Nutshell. I don’t know if you’ve seen the West Nutshell series over the years, but it’s a narrative. It’s not like a casebook, doesn’t have the case in it, it’s a narrative. Again, it’s based on the casebook, so it’s a third publication. We have the Casebook, the Supplement For Civil Procedure and the Nutshell should be out in about two months. And I’m hoping the Nutshell would be attractive not only to law schools but to members of The Bar because it’s easy reading, I mean, you can just read the whole Nutshell in any area. It’s not very hard. But I’m not saying that’s something new, there are many good books out there that lawyers can and should be buying. So I agree with Judge Facciola completely. Lawyers have to get up to speed and I think they’re trying. I do think they’re trying. That’s why as I said, CLEs have been popular.

KARL: Ralph, you can take a shot at this first. I’d like to get both your opinions. I mentioned earlier a blog post in Ralph’s blog by Shannon Capone Kirk that I found interesting with a quote that said:

“[T]he dizzying “hell” (as Nash would say) lawyers endure now in navigating the uncharted seas of E-Discovery – the sanctions, the technology, the new technology, the newer technology, the vendors, the review platforms, the advanced review platforms, the review platforms 2.0, 3.0, 4.0, 5.0, etc., the hold orders, the 30(b)(6) depositions, the conflicting law, metadata, e-gads metadata’s ugly step-sister, embedded data, the new and then new again local rules, and the sanctions again? Oh, our “hell did slowly go by” – but it doesn’t have to be that way ad infinitum.

Do you have a reaction to that and how can law school’s courses help us?

RALPH: Well, I agree with what Judge Scheindlin said earlier and that is, we’re kind of hopelessly, as Ken Withers likes to say, protodigital, Judge Scheindlin and I, because we grew up with paper. But now those days are over. It’s now all digital. So it’s a little difficult for us senior litigators. As Jason Baron likes to say, anybody that’s actually seen the Apollo moon landing is probably too old to get it. So that’s why a lot of us put our heart in the law schools. But we can’t really wait that long, so CLEs are also important, but even more important, is the advent of specialization and internal law firm training. I know that Shannon Kirk, who wrote the blog you mentioned, “Teach Your Children Well,” is deeply involved in that, as am I at Akerman. We are setting up specialty areas within our law firms where there are attorneys that do e-discovery and only do e-discovery, such as myself. That’s all I do. And it is a complicated field. Zubulake is just the beginning of a long journey of study and understanding. Just like we have antitrust specialists, we’re going to have e-discovery specialists. That’s just the way that it has to be going forward in order to deal with the just incredible complexities of the IT systems. The architecture of all of this, as Judge Scheindlin mentions in Zubulake, is constantly evolving and it becomes really a full-time job to keep up with this.

JUDGE: Well I’ll just throw in a couple words here. I’m a little bit concerned about the risk of conflating a law education, a legal education with a technical education.

I don’t think that we can turn all lawyers into computer specialists, and there are some lawyers who have a love of computers and they really do both fields – and probably Ralph Losey is one of them and there are a couple others who come to mind – but many lawyers are really lay people. They don’t have an engineering background, a science background, a math background, and they’re never going to implement technology. But what I think is important is that they at least identify when they need help, the questions they should ask, the places they should go. We just want them to be educated, conversant with the field, even though we may not expect all lawyers to become technical specialists.

KARL: Those are good points. Now in the world of a young lawyer, a law student breaking in, you know, is this something that we’re going to have to wait to germinate? Because I remember being a first year associate and it was hard to set strategy when you were just trying to find a work assignment in a firm?

JUDGE: I’m sorry, I don’t understand that question.

KARL: Well is it, you know, do you expect it to take a while for the law students to actually be able to make contributions within law firms?

JUDGE: I don’t expect a law student, you mean a young lawyer?

KARL: A young lawyer who’s gone through these courses?

JUDGE: Well that’s interesting. The young lawyers, as Ralph said earlier in this podcast, are going to be ahead of the more senior partners because they’re just going to be more conversant with computers and computer technology. So I think we’ve seen already in law firms that the more senior people turn to the more junior people for their sort of youthful knowledge and energy to take a leadership role in e-discovery projects. I think a young lawyer has a lot to contribute when usually he or she would not.

KARL: Yeah, that’s a good point. Anytime you have a differentiating skill in a firm it’s not a bad thing, too.

JUDGE: Right.

KARL: Well 40 schools, I guess, was the number that was thrown out – I haven’t Shepardized or checked that – are offering electronic discovery, and I know that there’s about, I think, 180 or 190 accredited law schools that are out there. Do you think the law schools have moved quickly enough into this area to add courses on electronic discovery? Ralph we’ll start with you but I’d like both your opinions.

RALPH: In the past, no, but I think that’s rapidly changing. I think that may be a positive benefit of the economic crisis, if you can try and find one, that we’re starting to be more practical. Many schools – and I’m talking the top tier schools – have had an attitude of “discovery is beneath us.” It’s not the kind of thing professors write about, there are not many circuit appellate positions on it. But I think the academic community needs to get real and face the fact that this is a serious problem that The Bar is facing. We need the help of the academic community, and we need to have professors start teaching this, not just adjuncts. And I’m hopeful but, to be honest with you, the top tier schools have – you know, we have Georgetown is a great exception to that, they’re leading the way, but most of them are pretty reluctant.

KARL: Okay. I’d like to ask a couple of questions on what a class on electronic discovery is like. Ralph, do you apply the Socratic method in this type of class? Is it anything like how Judge Scheindlin made her quest on the defendant in the Zubulake case, resulting in sanctions? To the best of your imagination. I know you weren’t there.

Socrates as imagined and painted by Raphael (he's the bearded one on right)

RALPH: Well, I’m teaching sanctions tomorrow in the class and we’re going to be talking about Zubulake. It’s great, I mean, it’s much more fun, and Judge, if you have an opportunity, I urge you to try it out. Compared to teaching CLEs, where they may or may not be paying attention, and they may be doing their Blackberries while you talk, the classes are much more focused and you have the opportunity to ask questions. So I do follow the Socratic method. I ask questions and the beautiful thing is they are starting to ask questions back. Last week before Spring break we were doing metadata and, you know, I had to say, “Okay, we’re going to have to move on now,” there were so many questions. I mean, it is something that I think the students understand that finally they’ve got an edge from what they’ve learned. They know they know more than their parents, and they know they know more than the law firms they’re going to be working with, and I think they get it and they see this opportunity. So there’s a real excitement there in teaching in law schools and the kids are very bright. A lot of them have some terrific backgrounds. So I do have a lot of hope for the future coming out of that.

KARL: Well that’s fantastic. Judge Scheindlin, do you think a class on electronic discovery, which it sounds technical in nature and therefore scary to most law students, might have the risk of only getting geek lawyers to sign up?

JUDGE: Actually no, I don’t have that concern at all because what we’ve said throughout this call, that people in their twenties don’t have the same kind of phobia as we might have had 30 years ago about the word “computer” or the word “technology” or the word “tapes.” I mean, these words are not scary to these people in their twenties. So I don’t think that you’re only going to get geek lawyers. All the kids in law school have grown up with all of this. It’s very familiar to them. They like it. I know that from my law clerks. There’s not a law clerk I get now who can’t do all kinds of amazing things with computers. So I think they will embrace it. They will not be afraid of it.

KARL: That’s true. They’ll probably be, I mean, I know my kids are on Facebooks and all that, and …

JUDGE: Exactly. Exactly.

KARL: Its their world.

JUDGE: Well we have a problem with that. I don’t know if you saw the article in today’s New York Times, that jurors who have long been instructed not to do any research outside the courtroom are now ignoring that instruction, going on Google, going on Facebook, and we just had three trial verdicts rescinded, according to the New York Times, in major cases because jurors confessed to doing all this research online. It’s so easy and they’re so used to it.

KARL: I don’t know what you can do about that.

JUDGE: We have a problem with technology now. It’s too easy. It’s too available. They leave the courtroom and they do their own work, it’s terrible. I mean, we just have to be firmer in our instructions but we’ll never catch them if they don’t tell us.

KARL: We’ll have to sanction the jurors.

JUDGE: Well it’s a real, real issue for the court because, particularly the high profile case, if somebody goes home and Googles it, they’re going to hear a lot of things or read a lot of things that we kept out of the trial for evidentiary purposes. Based on the Rules of Evidence. So it’s a real problem. It’s an interesting article in today’s Times.

KARL: Well I have to definitely look it up. You know, the same sort of question, Ralph, for you for practitioners today. Do you think we’re still finding intimidation within, you know, other lawyers that are practicing about electronic discovery?

RALPH: Yes, definitely. That’s the generational divide and that’s, I think, one of the things that’s very important going on now is that the e-discovery world is embracing a new attitude about e-discovery. The main example is the cooperation proclamation, which Sedona is spear-heading, and I know Judge Scheindlin has signed on to that. And I think a lot of the reason that so many of my peers, senior litigators, are still doing the old way of fighting through discovery is because they are not comfortable with the discovery because they don’t understand the technology. And when you don’t really know what’s going on, the tendency especially seems to be to fall back on old ways of fighting over things. And so this is part of the problem and, as the attorneys do get more comfortable, they delegate it out, I think you’re going to start to see more cooperation; plus the fact we simply cannot afford to keep playing games with discovery. It’s too expensive. So I think there is an intimidation factor but people have just got to move beyond it. The clients demand it. They’re not going to keep paying through the nose for the kind of outrageous expenses involved in fighting over things that should simply be stipulated to.

KARL: You know a question just struck me from your answer. I was thinking of a lawyer I was talking to at a fairly sophisticated firm of about 25 lawyers, very strong commercial litigators, and they’re on a case where they subpoenaed a third party for email, and they found a disinterested third party and they got zero email back. And they’re not sure what they’re even going to do. They know – because they don’t know what it will cost and, you know, is it worth to fight but – I mean that’s the sort of thing that I think is still out there even within sophisticated law firms. Now how do you handle that and as a judge, what would be your advice, Judge Scheindlin?

JUDGE: I’m sorry, my advice on?

KARL: If a lawyer is in a case and they subpoenaed a third party for its email?

JUDGE: And got nothing?

KARL: And they got nothing. Not a single email back.

JUDGE: That’s logically impossible. I would bring it to the court. I mean, lawyers seem reluctant sometimes to ask the court for help, but that’s a case where they definitely should. They can do it in a letter, and say look, I don’t want to take the court’s time, I don’t want to make a motion to compel, but it’s inherently impossible if there is zero email. Something’s wrong here. And then the parties come into court and the judge works with the parties and the judge has knowledge and suddenly the situation changes and hundreds are produced. I mean, we are all familiar with last year’s Qualcomm v. Broadcom case where there were no emails, no emails, and suddenly there were half a million pages. But it took terrible persistence on the part of the adversary and then eventually the court to force the party to cough them up. And the first response was there are none. There are none. Well then suddenly there’s tons. And we’ve had that experience in case after case.

KARL: Well that pulls us in a different direction there. So getting back onto the topic, the biggest lesson Judge Scheindlin and also to you Ralph is, what do you think is the biggest lesson we can teach our law students in newbie electronic discovery lawyers?

JUDGE: The biggest lesson. You mean within the substantive area of e-discovery?

KARL: Yes.

JUDGE: Ah, substantive area. Well, I’ve been following the cases in recent years and I think the biggest topic that’s evolving is to think hard about the effectiveness of the search protocol that you develop because there seem to be too many failed protocols. People think they’ve searched and they haven’t looked in the right places, haven’t communicated with the right people, they haven’t used best technology to go through materials they do have. I had a case recently with many, many millions of documents and the privilege review was so poorly done that it simply failed to identify the privileged documents. And then when the attorney realized it, he asked for a second chance and that pretty well failed too, and a third chance. And the point is that people just aren’t getting this right and I think Magistrate Judge Grimm wrote a very fine opinion in Victor Stanley v. Creative Pipe where he explained the same problem, that nobody even quality-tested the protocol that the client and/or vendor were using to see if it was working. So if I were to pick on one issue I would have to say you have to test to see if what you’ve developed is a good way to search materials and produce relevant non-privileged information.

KARL: That’s heartening to hear because that’s I focus on. But anyway … thank you.

JUDGE: Do you disagree with what I said, Ralph, or do you think it’s right on?

RALPH: Uh no, that is very important. And I would just phrase it a little differently insofar as the primary thing I’ve found myself coming back to and explaining to the law students particularly is related to that. And that is the whole notion of proportionality, of scale, and of the importance of understanding Rule 26 (b)(2)(C) in achieving a balance between the value of a case, the importance of the case, and what the cost may be in the different kinds of information available. This is the kind of thing that you address so well in Zubulake and other cases. I mean, this is the fundamental thing that I think many lawyers have lost track of. They’ve gotten so involved in the chase, they aren’t coming back to the fundamental question: should I really be spending a million dollars to track down email when on the best day this case is only worth two million dollars? Is that the right thing, is that fair or does that comply with the requirement of a just and quick adjudication of justice? I’m trying to drill that in everyone’s head, and also the notion that discovery is not a field where there should be unnecessary contests. It should be a cooperative search for the truth and, you know, that kind of goes hand-in-hand. Let’s put the facts on the table and then just argue with what the facts mean. There’s plenty of room for adversarial arguments in the presentations to judge and jury, but not about technical things like metadata, do you need it or not; you know, let’s get real with that.

JUDGE: Well Ralph, I’d like to for just a moment challenge a little piece of what you said. You know, you don’t want to spend, you said, a million dollars on discovery when the case is at best worth two million. But what do you do when you are the defendant and you’re not there voluntarily, and you’re being asked to produce information. Are you saying that rather than spend that money you ought to throw in the towel and just settle the case? Because I’m worried, and many people are worried, about the high cost of e-discovery allowing extortion to occur in a settlement. Because from a defense perspective, you don’t have a choice. You have to spend what it takes to properly respond to the request. You must do it. You can’t just say, “Well it’s too expensive. I can’t do this.” You have to do it. You can try to seek cost shifting, you can try to involve the court in apportioning cost. By the end of the day you either do it or you’re going to pay it in a settlement. And I know there’s been a fear, I hear it all the time in The Bar, that the cost of e-discovery is shifting the ground in terms of the ability to extort settlements. And I’d like to hear what you think of that.

RALPH: Well I’m glad to hear your concern about that. I share that concern, as I am primarily doing defense work. Of course, in e-discovery it’s not so much defense as it is requester or producer, and the producing party if it’s a larger corporation, David and Goliath, can be behind the eight ball. But I do think that a large company is entitled to protection and that there is no need to try and find every piece of relevant email, but you should instead scale your search. We should be thinking in terms, as I know you do, of rolling productions in a series. Let’s start off – let’s see what we can get in an economical manner and produce that first, and then come back with secondary, more focused discovery. Because, you know, I don’t think you should have to spend a million dollars to find electronic evidence if the case is two million. I think that’s where you go immediately for protection and do not allow yourself to be extorted by the cost of a lawsuit.

JUDGE: But that’s the key point. You can’t use self-help. You either go for protection by coming to court or you comply. But you can’t take the middle ground and just ignore it, put your head in the sand, do it half way and then say, “Well the reason I didn’t do better is it was too expensive.” That’s what you can’t do and that’s where I think a lot of lawyers make a mistake.

KARL: You know these are both great topics and I’m going to do shows on both of those topics because they’re great. I was digging for more future shows and so consider those preview answers. I want to wrap up here with just a couple of quick questions on the book. The textbook, by the way, I skimmed through the content and it looks like it’s about 650 pages long, it’s extremely comprehensive, lots of cases, hundreds of issues. Do you think there’s a larger market for this book for lawyers or young lawyers to get this book, or is it really for law students?

JUDGE: Well it was certainly created for law students but it wouldn’t be the first casebook where a practitioner says, “Given what’s available on the market, I think I’d like to own this book.” So I have had a number of practitioners who told me they bought it. It’s funny, I get an email saying I bought your casebook. I mean, I didn’t ask them to. I don’t know why they did. But I guess there’s not so much on the market and they thought it might be a useful way to learn. So, while I didn’t envision it for the lawyer market which is one reason we’re coming out with the Nutshell, it certainly can’t hurt. And I expect it is going to be on a number of lawyers’ book shelves.

KARL: My last quick question is, given the collaborative nature of law, I know in the voluminous content of the book, there has to have been people that helped you write it and if you wanted to thank anyone?

JUDGE: Oh we did, it’s all in the Preface. I don’t want to single one person out and forget to name another. But a co-author of the book is the Sedona Conference. So the Sedona Conference used volunteers who are members of the Conference to help with some of the sections. And as I said, I know if I start to name one name I’ll for get another, but it’s all in the Preface. They’re all thanked individually. We were very grateful to the members of the Sedona Conference who contributed to the book in addition to the work that Professor Capra and I did. So, obviously, Ken Withers, Educational Director, was the coordinator of the volunteers. So Ken’s name I certainly can mention separately. But other than that, just in general, we want to thank the Sedona Conference and its volunteers.

KARL: Great. And we’re going to have Richard Braman on a show in a couple weeks talking about the collaboration initiative and trying to get better cooperation out there. But I want to thank both of you for living with the technical glitches. We are in an electronic world and I’m glad that we’re able to come up with a back-up plan. I hope we will do future shows on other topics. I know, Ralph, we’re talking about one. And thank you again for your participation.

JUDGE: Okay. Thank you. Bye.

KARL: Okay. Take care.

RALPH: Thank you. Good bye.

March 18, 2009
As Jurors Turn to Web, Mistrials Are Popping Up

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. The juror had even told his readers that a “big announcement” was coming on Monday. But the judge decided to let the deliberations continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.

“That’s the beauty of the adversary system,” said Professor Wellborn, co-author of a handbook on evidence law. “You lose all that when the jurors go out on their own.”

There appears to be no official tally of cases disrupted by Internet research, but with the increasing adoption of Web technology in cellphones, the numbers are sure to grow. Some courts are beginning to restrict the use of cellphones by jurors within the courthouse, even confiscating them during the day, but a majority do not, Mr. Keene said. And computer use at home, of course, is not restricted unless a jury is sequestered.

In the Florida case that resulted in a mistrial, Mr. Raben spent nearly eight weeks fighting charges that his client had illegally sold prescription drugs through Internet pharmacies. The arguments were completed and the jury was deliberating when one juror contacted the judge to say another had admitted to her that he had done outside research on the case over the Internet.

The judge questioned the juror about his research, which included evidence that the judge had specifically excluded. Mr. Raben recalls thinking that if the juror had not broadly communicated his information with the rest of the jury, the trial could continue and the eight weeks would not be wasted. “We can just kick this juror off and go,” he said.

But then the judge found that eight other jurors had done the same thing — conducting Google searches on the lawyers and the defendant, looking up news articles about the case, checking definitions on Wikipedia and searching for evidence that had been specifically excluded by the judge. One juror, asked by the judge about the research, said, “Well, I was curious,” according to Mr. Raben.

“It was a heartbreak,” Mr. Raben added.

Information flowing out of the jury box can be nearly as much trouble as the information flowing in; jurors accustomed to posting regular updates on their day-to-day experiences and thoughts can find themselves on a collision course with the law.

In the Arkansas case, Stoam Holdings, the company trying to overturn the $12.6 million judgment, said a juror, Johnathan Powell, had sent Twitter messages during the trial. Mr. Powell’s messages included “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter” and “So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Mr. Powell, 29, the manager of a one-hour photo booth at a Wal-Mart in Fayetteville, Ark., insisted in an interview that he had not sent any substantive messages about the case until the verdict had been delivered and he was released from his obligation not to discuss the case. “I was done when I mentioned the trial at all,” he said. “They’re welcome to pull my phone records.”

But juror research is a more troublesome issue than sending Twitter messages or blogging, Mr. Keene said, and it raises new issues for judges in giving instructions.

“It’s important that they don’t know what’s excluded, and it’s important that they don’t know why it’s excluded,” Mr. Keene said. The court cannot even give a full explanation to jurors about research — say, to tell them what not to look for — so instructions are usually delivered as blanket admonitions, he said.

The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, pointing out that “it’s up to Juror 11 to make sure Juror 12 stays in line.”

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque and works for a financial advising firm, said he was serving on a jury last year when another juror admitted running a Google search on the defendant, even though she acknowledged that she was not supposed to do so. She said she did not find anything, Mr. McDowell said.

Mr. McDowell, 35, said he thought about telling the judge, but decided against it. None of the other jurors did, either. Now, he said, after a bit of soul-searching, he feels he may have made the wrong choice. But he remains somewhat torn.

“I don’t know,” he said. “If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years.”

Mr. McDowell said he planned to attend law school in the fall.