{"id":1118,"date":"2013-04-03T14:28:47","date_gmt":"2013-04-03T14:28:47","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=1118"},"modified":"2019-03-08T19:52:36","modified_gmt":"2019-03-09T00:52:36","slug":"e-discovery-as-quantum-law-clash-of-cultures-what-the-future-portends","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2013\/04\/03\/e-discovery-as-quantum-law-clash-of-cultures-what-the-future-portends\/","title":{"rendered":"E-Discovery as Quantum Law: Clash of Cultures-What the Future Portends"},"content":{"rendered":"

\"pdf_icon\"Download PDF<\/a><\/p>\n

Cite as: Michael Yager, E-Discovery as Quantum Law: Clash of\u00a0Cultures\u2014What the Future Portends<\/em>, 19 RICH. J.L. & TECH 10 (2013),\u00a0available at http:\/\/jolt.richmond.edu\/v19i3\/article10.pdf.<\/p>\n

\u00a0<\/p>\n

By Michael Yager*<\/p>\n<\/p>\n

I.\u00a0 Introduction<\/b><\/h3>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Early in the twentieth century, the phenomenon that is the \u201cquantum\u201d[1] stormed the fortress of classical physics, causing Albert Einstein, one of science’s greatest thinkers, to opine, \u201c[i]t was as if the ground had been pulled out from under one, with no firm foundation to be seen anywhere, upon which one could have built.\u201d[2]\u00a0 The theoretical laws associated with looking at reality on the quantum level violently collided with those related to looking at the same reality on the macro level.\u00a0 The application of quantum theory to the mathematically pure and proven classical laws of physics introduced a cultural clash in the world of theoretical physics, which caused many physicists to doubt their very sanity.\u00a0 This Article argues that developments in the law related to the phenomenon of \u201ce-discovery\u201d[3] have been no less shattering to those practitioners in the classical practice of law than the introduction of quantum theory in physics.\u00a0 The introduction of \u201celectronically stored information\u201d or \u201cESI\u201d using the procedural rules designed to govern the classical practice of law created an identifiable shift in jurisprudence related to e-discovery.[4]\u00a0 Indeed, the introduction of this category of discoverable information caused a cultural explosion within a segment of the legal profession not seen in any other profession since those great thinkers of physics nearly a century ago.<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This Article provides an overview of the clash of cultures extant in the practice of e-discovery related law today along with an entertaining comparative perspective from the viewpoint of a similar clash that occurred in the physical sciences.\u00a0 The author hopes that by understanding more fully some of the causes of practitioner angst in managing e-discovery obligations, along with a glimpse of what trends can be expected in the future, this phenomenon can be better confronted and managed.<\/p>\n

\u00a0<\/b><\/p>\n

II.\u00a0 Discussion<\/b><\/h3>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Changes in the law are most often driven by reasoned debate over a period of some time and carefully, if not cautiously, embraced by the bench.\u00a0 Drama is by and large a stranger to the doorstep of the law, except for those moments that attend some social or economic issue with political import, and for the most part is incompatible with the plodding evolution of jurisprudence.\u00a0 With complete awareness of and respect for the reality comprising the beautifully crafted portrait of the law, which was accomplished over hundreds of years by the many practitioners and judges using the most considerate strokes of the brush, this Article introduces a moment of drama.<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Cultural explosions come in many colors and stripes.\u00a0 In Europe, the French Revolution comes to mind.\u00a0 In America, the emergence of an anti-government, anti-authority culture reflected in unprecedented massive national demonstrations across the landscape during the Vietnam War comes to mind.\u00a0 Few would argue that these two examples do not reflect the clash of cultures between two different worlds of values and beliefs.<\/p>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In the classical practice of law, one would expect to find a more subtle representation of such a clash aside from the guillotine of the French Revolution or the Kent State tragedy that captured the culture clash of noble protectors of freedom and dirty hippies protesting without a permit.\u00a0 While a single image may not express the violence that often accompanies socio-cultural explosions within a nation’s history, its representation of the clash of worldviews can be no less dramatic.\u00a0 The graphic presented as part of the article \u201cSanctions for E-Discovery Violations: By the Numbers\u201d published in the Duke Law Journal<\/i> in 2010 is one such representation. [5]\u00a0 This graphic, reproduced in the Appendix, shows the increase in the number of cases in which e-discovery related sanctions were sought.[6]\u00a0 Like the recording instruments of the first experiments in the early days of quantum physics, the explosion documented by this graphic, although not representative of physical violence, paints a portrait of an earth-shattering cultural clash within the realms of classical law and quantum law.<\/p>\n

 <\/p>\n

III.\u00a0 A Clash of Cultures<\/b><\/h3>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The classical culture and practice of law are best captured in the days before the FRCP and the 2006 Amendments brought ESI to life.\u00a0 As with isolated early experimental results in quantum physics, there are instances where courts acted on discovery abuses relating to ESI before those now hallowed amendments found their way onto the pages of the FRCP.[7]\u00a0 Just like the early theories and experiments in quantum physics, these decisions were mere drops of rain on a landscape that was soon to experience the torrent of a flash flood running beyond the banks of a reasoned river of e-discovery related jurisprudence.<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In \u201cclassical law,\u201d discovery was something most often managed down the road after litigators were convinced that a relatively swift resolution of the merits by settlement would not take place short of moving on to more serious stages of the litigation life cycle.\u00a0 E-discovery was often viewed as one of the steps toward the more deliberate moments of litigation, carrying with it a classical gravity of a sort.\u00a0 While the FRCP and many state rules before the advent of ESI spoke to the duty of evidence preservation, one is hard pressed to identify more than a handful of litigation hold letters or memoranda from an attorney to a client amongst the tens of thousands of cases litigated before the year 2000.[8]\u00a0 As the Duke Law Journal <\/i>graphic indicates, a culture clash surrounding discovery motions practice emerges with ESI and the development of jurisprudence related to discovery preservation and spoliation, the phenomenon of \u201cquantum law.\u201d[9]\u00a0 The graphic, however, is telling in that with the introduction of ESI into the FRCP, there was a brilliant clash of cultures between classical law and quantum law.\u00a0 History will determine whether quantum law finds its etiology in the bench, the bar, or a combination of the two, but something continues to drive it in ample measure in the present.<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Indeed, while conducting e-discovery CLEs, references to the Duke Law Journal <\/i>graphic are accompanied with a simple question: \u201cWhy?\u201d[10]\u00a0 Why, on this graphic of discovery motions practice is over a quarter of a century of relatively flat, nearly negligible bars followed by an explosion of sanctions in the last six to eight years?\u00a0 If the FRCP were amended, for example, to change the number of days allowed for mailing a response to discovery, or for the filing of an answer to a complaint, would we witness similar widespread non-compliance by attorneys?<\/p>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The clash of cultures related to the phenomenon of quantum law has not escaped notice.\u00a0 As with the introduction of quantum theory in physics, jurisprudence related to e-discovery has slowly begun to spawn incredulous observations.\u00a0 This incredulity of the present clash is well captured in some of the comments fr
\nom its historical counterpart in physics.\u00a0 \u201cThe more I think about the physical portion of the Schr\u00f6dinger theory, the more repulsive I find it,\u201d Werner Heisenberg fulminated.[11]\u00a0 Indeed, Schr\u00f6dinger seemed to agree with him, exclaiming at one point that, \u201c[i]f all this damned quantum jumping were really here to stay, I should be sorry I ever got involved with quantum theory.\u201d[12]\u00a0 Today, running on a course parallel to those esteemed scientists\u2019 remarks, one can almost sense the same level of abject disbelief in the words of numerous court decisions resulting from the clash of cultures between classical law and quantum law.\u00a0 One is particularly poignant:<\/p>\n

Once again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to \u201cmeet and confer,\u201d \u201ccooperate\u201d and generally make every effort to \u201ccommunicate\u201d as to the form in which ESI would be produced.\u00a0 The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court<\/em>.[13]<\/p>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 Certain words in these decisions seem to reflect judicial rumination on the quantum law phenomenon and point to a biting and unflattering analysis.\u00a0 \u201c[L]awyers\u2014even highly respected private lawyers . . . need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production.\u00a0 Lawyers are all too ready to point the finger at the courts and the Rules . . . .\u201d[14]\u00a0 In the title of his article, \u201c\u2018Do I Really Have To Do That?\u2019 Rule 26(a)(1) Disclosures and Electronic Information<\/i>,\u201d United States Magistrate Judge David J. Waxse succinctly captured the attitude of practitioners of classical law who continue to be buffeted by the requirements and impact of ESI.[15]\u00a0 So widespread is this crash of clashing of cultures that Judge Waxse observed that such disbelief \u201cecho[ed] around the litigation world.\u201d[16]\u00a0 Practitioners are also taking notice.<\/p>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Ralph Losey, an attorney who phased out his general trial practice to fully engage in the e-discovery world, \u201cquickly noticed something [he] had not seen before in any other field of law. . . . case law is dominated by sanctions cases involving spoliation of evidence. . . . [and] attorneys are often directly implicated in this spoliation.\u201d[17]\u00a0 Losey expressed early wonderment at the world of quantum law, \u201cwonder[ing] if [he] had stepped into a crazy zone of the law.\u201d[18]\u00a0 Brad Harris and Craig Ball\u2014the former an expert practitioner and the latter an attorney and one of the foremost national experts on e-discovery law\u2014suggest that \u201c[t]he growing urgency of this matter . . . touched off a flurry of rulings in the area of legal holds in 2010, with several major court decisions redrawing the map in what had been virtual terra incognita.\u201d[19]<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 In the laboratory of quantum law, the results of the \u201cexperiments\u201d in the form of an exploding ESI-related motions practice and resulting sanctions were often so bizarre that practitioners of classical law simply refused to accept what was before them.\u00a0 Up seems to become down and far away now seems too close to bear.\u00a0 The world of classical law is askew as if stretching to the forces of some unseen black hole.[20]\u00a0 Simple basic tenets of law steeped in tradition are becoming seemingly meaningless in the world of quantum law.\u00a0 The bedrock principles of stare decisis<\/i> and the influence of nonbinding precedence hold no sway in this clash of cultures.\u00a0 Practitioners now hear that an e-discovery spoliation decision made by a judge in New York’s Southern District might bear on how they should manage discovery in their district in the Fourth or Ninth Circuit.[21]\u00a0 Respected counsel from respected firms, albeit of the newly emerging practitioner class of quantum law, write things about a single decision by a single judge “promis[ing] to significantly affect the way e-discovery is practiced and litigated in the federal courts.”[22]\u00a0 Classical law practitioners\u2019 reactions are deep seated and visceral.<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 I recall a dear friend a well-seasoned litigator summoning me to a lunch one day shortly after the release of the FRCP 2006 Amendments and the resulting written and reported smatterings of happenings from the world of quantum law began to appear.[23]\u00a0 My friend inquired: \u201cDo you believe this is something here to stay or just the latest judicial fad?\u201d\u00a0 I opined that perhaps what we were seeing belonged to the former rather than the latter category, which was answered by a look of despondency. With a panic stricken countenance in stark dissonance to
the once confident and charismatic litigator I had known for many years, my friend exclaimed: \u201cI don’t care what a federal judge tells me to do about this so-called e-discovery.\u00a0 I am simply not going to do it.\u00a0 They cannot make my client incur all of these ridiculous costs!\u201d\u00a0 This was a response that well reflects the anguish that the simple term \u201cESI\u201d introduced to the world of classical law. \u00a0Many classical practitioners felt, for the first time in perhaps storied careers, that the legal landscape over which they had exercised such command and control assumed a foreign and threatening shape.\u00a0 Their refusal to acknowledge and accept what was fast becoming a new force in litigation to be reckoned with, I suggest, contributed to the phenomenon so well captured by the Duke Law Journal<\/i> graphic.\u00a0 It certainly did not escape notice of the editors of the Federal Judicial Center, who noted in the preface to Managing Discovery of Electronic Information: A Pocket Guide for Judges<\/i> that:<\/p>\n

This second edition of the pocket guide on the discovery of electronically stored information (ESI) follows the first\u2014and the related 2006 amendments to the Federal Rules\u2014by more than five years.\u00a0 These intervening years have seen an explosion of civil case law on ESI<\/em>.[24]<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 While there is room for debate as to the etiology behind this explosion and the reasons behind such wholesale resistance of one culture to another, there can be little doubt that regardless of what we can, tongue in cheek, term the \u201cuncertainty principle\u201d[25] as to a precise description of the cause of the phenomenon before us, before us it is.\u00a0 Before us, it remains.<\/p>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 Notwithstanding some observations that suggest even a hint of reconciliation between classical law and quantum law, such reconciliation remains much sought after.\u00a0 Its elusiveness caused Magistrate Judge John M. Facciola of the United States District Court of the District of Columbia to opine that, \u201c[w]hen the dust settles 10 years from now and the scholars sit down cooperation will be seen as the most significant development from e-discovery.\u201d[26]\u00a0 Obviously, Judge Facciola believes that cooperation among counsel will resolve the effects that the clash of cultures caused and restore some sense of balance to what has been a tumultuous world of litigation since the advent of ESI.\u00a0 This sentiment echoes a law firm blog entry a few years ago entitled \u201cSanctions Down; Cooperation Up; Preservation, Privacy and Social Media Remain Challenging.\u201d[27]\u00a0 In this blog entry, the authors draw a silver lining around a drop in the number of requests for sanctions in 2010 as compared with 2009, believing it \u201creflects greater adeptness by litigants and counsel in e-discovery practice and broader acceptance of cooperation and openness in the e-discovery process.\u201d[28]\u00a0 The statistics, however, carry with them that seemingly contradictory component typified by the clash of theories in classical and quantum physics.\u00a0 Any hint of resolution or cooperation between the classical and quantum worlds always seems to leave a statistical \u201coutlier\u201d[29] that defies ultimate peace between the two different approaches of looking at th
\ne same world.[30]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 While noting the drop, albeit slight, in requests for sanctions and the corresponding sanction decisions, a statistical anomaly that challenges what seems to be on the surface some promising data confronts the authors of the blog on the theme of cooperation increasing in e-discovery.[31]\u00a0 \u201cAlthough requests for sanctions decreased, motions to compel more than doubled in 2010, being filed in 43% of all e-discovery cases as opposed to 20% in 2009.\u201d[32]\u00a0 Like their counterparts in theoretical physics grappling with a bothersome experimental result to a hoped for theory, the blog authors suggest an explanation consistent with the proposed model of cooperation.[33]\u00a0 To paraphrase, court intervention was sought on only a small number of e-discovery issues in which counsel could not agree with the intimation because this occurred after much cooperation.[34]<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 But to some observers, these \u201claboratory results\u201d from the world of quantum law which indicate a doubling <\/i>in motions to compel in 2010 with motions filed in \u201c43% of all e-discovery cases\u201d may not be as accommodating or optimistic. [35]\u00a0 Indeed, it is a difficult argument to make that the spirit of cooperation between counsel, the suggested cause of the decreased number of sanctions, is more strongly attached to attorney behavior than perhaps a growing judicial discretion at the bench in meting them out. [36]\u00a0 It would seem that the same spirit of cooperation which led to a fewer number of requests for sanctions might be expected to play out at the motions practice level, which is driven solely by attorneys.\u00a0 It might be a stretch to attribute the doubling in the number of motions to compel in e-discovery cases to counsel who were doing their best to cooperate but got hung up on the narrow technicalities of an e-discovery agreement, otherwise known as a \u201cgosh, we all just missed that\u201d moment.\u00a0 Filing a motion to compel was simply their last resort.\u00a0 The data suggest otherwise.[37]<\/p>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 To attribute a significant learning curve in the ranks of counsel to a decrease in the number of sanctions requested and sanctions ordered would be an understandable rush to judgment in the hope of some promising sign that the tide of the cultural clash is beginning to recede.\u00a0 One might similarly be impressed by the Equal Employment Opportunity Commission (\u201cEEOC\u201d) Performance and Accountability Report for the 2012 fiscal year, which indicates that the federal government is filing fewer lawsuits against companies.[38]\u00a0 One could infer from this statistic alone that companies are learning how to better comply with the EEOC requirements for establishing non-discriminatory work environments.\u00a0 As with the 2010 decrease in the number of e-discovery sanctions, there is an outlier to the decreasing number of lawsuits filed by the EEOC.\u00a0 \u201c[T]he number of systemic discrimination investigations has increased four-fold.\u201d[39]\u00a0 At the recent Georgetown Law Advanced E-Discovery Institute annual conference held in November 2012, one observer noted that frustration among the bench with lack of attorney cooperation continues:<\/p>\n

Collectively, the group [of Judges] expressed frustration that lawyers were not taking the lead in EDD disputes, and thus, in essence, forcing the judges\u2014rather than the parties themselves\u2014to determine protocols and strategies.\u00a0 The judges pushed several dominant themes: the need for lawyers to take the \u201cmeet and confer\u201d obligations seriously; to educate themselves on technology options; and to be reasonable and realistic about e-discovery protocols . . . <\/em>.[40]<\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 This hardly sounds like growing sophistication and cooperation in the world of quantum law.\u00a0 Rather, it is as if the clash of cultures is still in its infancy, reflecting the reality captured a few years ago in a Federal Judicial Center survey, that \u201conly one in three respondents reported that their 26(f) conference to plan discovery included a discussion of ESI.\u00a0 More than half of all respondents reported that the conference did not include discussion of ESI.\u201d[41]<\/p>\n

 <\/p>\n

IV.\u00a0 What the Future Portends<\/b><\/h3>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 In discussing alternative explanations for the conflicting e-discovery data referenced above, it is possible in some measure to argue what the immediate future portends with regard to the practice of the e-discovery component of law and the continuing clash of cultures.\u00a0 The following loom on the horizon:<\/p>\n

A.\u00a0 A Continuing Increase in E-Discovery Motions Practice<\/b>\u00a0<\/b><\/h3>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 A growing number of attorneys, particularly at larger firms or with more sophisticated practices, are becoming increasingly adept at the practice of e-discovery and learning how to better comply with court expectations.\u00a0 Various federal circuits have initiated programs or local rules which, for the first time, set forth standardized expectations required of counsel.\u00a0 This had led to an appearance of greater cooperation. \u00a0The Suggested Protocol for Discovery of Electronically Stored Information in the U.S. District Court, District of Maryland, and the Seventh Circuit\u2019s Electronic Discovery Pilot Program are two such examples.[42]\u00a0 More attorneys are attempting to comply with local rules and procedures with regard to e-discovery simply because some now exist where before there were none.<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 Litigation practitioners are putting to good use the resulting learning curve among attorneys indexed to increased participation in the e-discovery agreements required by local rules.\u00a0 But far from meaningful cooperation in resolving e-discovery issues, the doubling of motions practice from 2009 to 2010 and from 2011 to 2012 speaks volumes about what is really occurring.[43]\u00a0 Practitioners are becoming increasingly skilled and savvy in attempting to leverage the e-discovery advantage to tip the scales in their clients’ favor.[44]\u00a0 It is much more likely that the doubling of motions to compel reflects this reality of the litigation process.[45]\u00a0 As participants in an adversarial process, litigators realize that they are advocating on behalf of their client and were not retained to enter the calmer waters of mediation practice.\u00a0 The future will carry this trend forward as more practitioners become aware that many federal and state courts will impose sanctions against adversaries vulnerable to the dynamic ESI legal environment.\u00a0 Moreover, the trending of an increase in the imposition of sanctions will result in growing attempts by counsel to leverage this potential tactical advantage in the courtroom.[46]<\/p>\n

B.\u00a0 Double-Dip Inflation in E-Discovery Practice<\/b>\u00a0<\/b><\/h3>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 While the American economy is haunted by the threat of double dipping back into a recessionary spiral, e-discovery practice is poised to experience the opposite economic effect.\u00a0 Indeed, e-discovery is poised to double-dip back into the inflationary spiral that the first clash of quantum law caused, which is a clash that saw the early and memorable monolithic sanctions dispensed in such cases as Qualcomm<\/i> and Zubulake<\/i>.[47]\u00a0 Many of the largest law firms and major e-discovery vendors cut their teeth on these magnificently large and complex cases.\u00a0 This was the playing field of much of the early e-discovery law.\u00a0 The practitioners involved in these types of cases are those that experienced the greatest knowledge building within the often-intimidating world of law associated with e-discovery practice.<\/p>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 As quantum law has made itself known as a practice, there is a growing awareness on the part of many counsel in how to leverage what can be termed the patterns of exposure characterizing e-discovery law.\u00a0 “Patterns of exposure” have to do with the breadth and depth of e-discovery law on a variety of issues.\u00a0 As an example, the law relating to the issuance of written litigation finds a hom
\ne in many federal circuits and thus the pattern of exposure in litigation practice in any circuit is enormous.\u00a0 Whereas, more specific and narrowly detailed opinions such as Phillip M. Adams & Associates, L.L.C. v. Winbond Electronics Corp<\/i>., in which the court stated that one of the parties should have anticipated litigation based on other lawsuits happening in the industry, cannot be said to have created a significant exposure footprint; despite being bothersome, the exposure pattern is more slight.[48]<\/p>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 Newly enlightened practitioners in the art of e-discovery leveraging will see to it that the attendant motions practice and sanctions that confronted early practitioners will bleed down to the small or medium practices and cases.[49]<\/p>\n

C.\u00a0 Growth of the Pool of E-Discovery Victims<\/b>\u00a0<\/b><\/h3>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 As the bleed down phenomenon of e-discovery cases runs more quickly from the mountains of large firms and practices to the surrounding hills of the smaller litigation landscape, the borders of e-discovery motions practice will expand beyond those large firms and large cases to include many more victims.\u00a0 The pool of law firms confronting the exponentially growing world of ESI and its permeation into every corner of litigation of every conceivable size is growing.[50]\u00a0 Indeed, for every law firm that is developing an acute awareness of the nuances of e-discovery law and of the expertise, both legal and practical, with which to navigate these arguably treacherous waters, there are others that have not.\u00a0 This is a victim pool.\u00a0 During the introduction of quantum theories, the scientific method required that the same phenomenon tested in a different laboratory setting must yield the same results.\u00a0 Results that were incompatible with classical physics eventually overwhelmed it.\u00a0 Similarly, the early cycle of quantum law will find new life and live again with the growth of the e-discovery victim pool, foreshadowing a growing motions practice and number of associated sanctions with this expanding pool of smaller firms and cases.<\/p>\n

D.\u00a0 An Eventual Flattening of the E-Discovery Motions Practice and Sanctions<\/b>\u00a0<\/b><\/h3>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 The relatively recent pushback against rising e-discovery costs by companies of all sizes is a pushback against and a modifying force to the clash of quantum law.\u00a0 As with the downstream effect of growing e-discovery motions practice, this pushback will reach the newer practitioners who attempt to leverage this power as well.\u00a0 This reality will be more responsible for cooperation among counsel than the hope that litigators reach some mythic plateau of altruism as noble officers of the court.\u00a0 Also, as the next cycle of e-discovery practice bleeds down to a larger “victim pool” and runs its course, it should result in a certain equilibrium among practitioners who will know how to better manage the patterns of exposure attendant to ESI and the resulting portrait in jurisprudence related to e-discovery.\u00a0<\/b><\/p>\n

 <\/p>\n

V.\u00a0 Conclusion<\/b>\u00a0<\/b><\/h3>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 Rather than doubting intuition, practitioners should heed the lessons of the introduction of quantum physics while observing the changing landscape in e-discovery that results from the clash of cultures between classical law and quantum law.\u00a0 It may be comforting to classical practitioners that although quantum physics has yet to find a permanent home within the world of its classical counterpart, both now work side by side in what is seen as a quest of mutual interest of explaining the physical universe.\u00a0 Each acknowledges the other’s legitimate role in the total picture and many of the early conflicts have been resolved.\u00a0 In time, quantum law will reach equilibrium with classical law and e-discovery practices will become as predictable and acceptable as the filing of a motion in limine<\/i> or a motion for summary judgment.<\/p>\n

Appendix: Figure 1<\/b><\/p>\n

\"appendix<\/a>[51]<\/p>\n

\n
\n

*Michael Yager is the Director of e-Discovery for Spotts Fain, PC located in Richmond, Virginia.\u00a0 The author would like to acknowledge with thanks the contributions of Robert H. Chappell, III, and Robert D. Michaux, for applying their considerable editing skills to the manuscript.<\/p>\n

[1] \u201cQuantum\u201d is a term introduced by physicist Max Planck in 1900 to describe individual packets of energy as he worked on an equation which represented energy loss in his famous blackbody radiation experiments.\u00a0 While physics historians spend much effort on the precise etiology of the term as used by physicists, it is widely agreed among them that Planck is best tagged as the father of the quantum.\u00a0 See<\/i> David Thyberg, Max Plank\u2019s Quantum Theory<\/i>, eHow, <\/i>http:\/\/www.ehow.com\/about_5439341_max-plancks-quantum-theory.html (last visited Feb. 4, 2013).<\/p>\n<\/div>\n

\n

[2] Manjit Kumar, Quantum: Einstein, Bohr and the Great Debate About the Nature of Reality 1 (Icon Books Ltd. 2009) (2008).<\/p>\n<\/div>\n

\n

[3] The term \u201ce-discovery\u201d is shorthand for \u201celectronic discovery.\u201d\u00a0 For a phenomenon not far out of its infancy, it is not unusual to see a variety of terms come and go.\u00a0 \u201cEDD\u201d was an early favorite of many, standing for \u201celectronic data discovery.\u201d\u00a0 Both terms broadly refer to all of the elements of discovery which attend electronically stored information.<\/p>\n<\/div>\n

\n

[4] The Federal Rules of Civil Procedure (\u201cFRCP\u201d) were amended in 2006 to introduce this new category, \u201celectronically stored information,\u201d as material to be preserved as part of a party’s discovery obligations.\u00a0 See <\/i>K&L Gates, E-Discovery Amendments to the Federal Rules of Civil Procedure go into Effect Today<\/i>, Elec. Discovery L. (Dec. 1, 2006, 2:27 PM), http:\/\/www.ediscoverylaw.com\/2006\/12\/articles\/news-updates\/ediscovery-amendments-to-the-federal-rules-of-civil-procedure-go-into-effect-today\/.<\/p>\n<\/div>\n

\n

[5] Dan H. Willoughby, Jr. et al., Sanctions for E-Discovery Violations: By the Numbers<\/i>, 60 Duke L. J. 789, 795 fig.1 (2010).<\/p>\n<\/div>\n

\n

[6] See infra<\/i> Appendix: Figure 1.<\/p>\n<\/div>\n

\n

[7] Compare <\/i>Ill. Tool Works, Inc. v. Metro Mark Prods., Ltd., 43 F. Supp. 2d 951, 953, 960-61 (N.D. Ill. 1999) (holding that sanctions against defendants in misappropriation of trade secrets action were warranted for violation of discovery order by tampering with computer that had been ordered to be produced), with <\/i>Koken v. Black & Veatch Constr., Inc., 426 F.3d 39, 53 (1st Cir. 2005) (finding that the district court did not abuse its discretion by refusing to impose monetary sanctions for party\u2019s alleged failure to timely provide documents, particularly electronic documents, during discovery).<\/p>\n<\/div>\n

\n

[8] Litigation hold letters, also known as legal holds, are instruments, most often an email or correspondence, issued from counsel and\/or company management to individuals identified as likely custodians of potentially relevant ESI (as well as paper documents) in an action, or an anticipated action.\u00a0 Each custodian will have numerous potential data locations that must be preserved and the litigation hold speaks to this in general and specific terms.<\/p>\n<\/div>\n

\n

[9] See <\/i>Willoughby et al., supra <\/i>note 5.<\/p>\n<\/div>\n

\n

[10] The author is the instructor of The E-Discovery Challenge: Practice and Ethics<\/i>, Virginia Mandatory Continuing Legal Education, Course No. JAA0017, in which he discusses this graphic
\n.<\/p>\n<\/div>\n

\n

[11] Kumar, supra <\/i>note 2, at 155.<\/p>\n<\/div>\n

\n

[12] Id.<\/i><\/p>\n<\/div>\n

\n

[13] Nat\u2019l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, No. 10 Civ. 3488(SAS), at 25 (S.D.N.Y. Feb. 7, 2011), available at<\/i> http:\/\/ccrjustice.org\/files\/Doc%2041%202-7-11%20Opinion%20and%20Order%20re%20Form%20of%20Production.pdf, withdrawn<\/i>, 2011 WL 381625 (June 17, 2011).<\/p>\n<\/div>\n

\n

[14] Id.<\/i><\/p>\n<\/div>\n

\n

[15] David J. Waxse, “Do I Really Have To Do That?” Rule 26(a)(1) Disclosures and Electronic Information<\/i>, 10 Rich. J.L. & Tech. 50 (2004), at<\/i> http:\/\/law.richmond.edu\/jolt\/v10i5\/article50.pdf.<\/p>\n<\/div>\n

\n

[16] Id.<\/i> at \u00b6 8.<\/p>\n<\/div>\n

\n

[17] Ralph Losey, Ethics of Electronic Discovery – Part One<\/i>, e-Discovery Team (Mar. 4, 2012, 9:18 PM), http:\/\/e-discoveryteam.com\/2012\/03\/04\/ethics-of-electronic-discovery-part-one\/.<\/p>\n<\/div>\n

\n

[18] Id.<\/i><\/p>\n<\/div>\n

\n

[19] Brad Harris & Craig Ball, What’s There to Hold On To? An Enlightened Approach to Data Preservation in the Era of the Legal Hold<\/i>, Corp. Couns., Feb. 14, 2011.<\/p>\n<\/div>\n

\n

[20] <\/i>“Black holes” are phenomena known in physics which describe an area of space in which the gravity is so great that all matter around it literally swirls down it into nothingness.\u00a0 Not even light can escape. See generally <\/i>Stephen W. Hawking, A Brief History of Time: From the Big Bang to Black Holes 81-82 (1988) (discussing this marvel of science).<\/p>\n<\/div>\n

\n

[21] See, e.g.<\/i>, Philip Yannella & Abraham Rein, Zubulake Revisited: Pension Committee Decision Offers Spoliation Guidance<\/i>, Dechert LLP, http:\/\/www.dechert.com\/files\/Publication\/aa5656f7-126b-404d-8f1d-d4905fe60d7f\/Presentation\/PublicationAttachment\/04cbec1f-b3b5-435a-8085-dd7bee3d5ee7\/2-10_PROD-LIAB_Yannella_Rein_Zubulake_Revisited.pdf (last visited Feb. 4, 2013) (discussing Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., L.L.C., 685 F. Supp. 2d 456, 464-69 (S.D.N.Y. 2010), abrogated by<\/i> Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012)).<\/p>\n<\/div>\n

\n

[22] Yannella & Rein, supra<\/i> note 21.<\/p>\n<\/div>\n

\n

[23] See<\/i> Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 253 (D. Md. 2008); In re <\/i>Subpoena Duces Tecum to AOL, L.L.C., 550 F. Supp. 2d 606, 608-09 (E.D. Va. 2008); Nucor Corp. v. Bell, 251 F.R.D. 191, 192 (D.S.C. 2008); Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL 66932, at *2-3 (S.D. Cal. Jan. 7, 2008); PSEG Power N.Y., Inc. v. Alberici Constructors, Inc.,<\/i> No. 1:05-CV-657 (DNH\/RFT), 2007 WL 2687670, at *1 (N.D.N.Y. Sept. 7, 2007); Modern Eng\u2019g, Inc. v. Peterson, <\/i>No. 07-CV-1055, 2007 WL 2680563, at *2 (C.D. Ill. July 16, 2007); Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 205 (E.D.N.Y. May 25, 2007); Calyon v. Mizuho Sec. USA Inc., No. 07CIV02241RODF, 2007 WL 1468889, at *1 (S.D.N.Y. May 18, 2007); Hagenbuch v. 3B6 Sistemi Elettronici, No. 04 C 3109, 2005 WL 6246195, at *1 (N.D. Ill. Sept. 12, 2005); Zubulake v. UBS Warburg, L.L.C., 229 F.R.D. 422, 424 (S.D.N.Y. 2004).<\/p>\n<\/div>\n

\n

[24] Barbara J. Rothstein, Ronald J. Hedges & Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges 1 (2012), available at<\/i> http:\/\/www.fjc.gov\/public\/pdf.nsf\/lookup\/eldscpkt2d_eb.pdf\/$file\/eldscpkt2d_eb.pdf<\/cite>.<\/p>\n<\/div>\n

\n

[25] See generally<\/i> Kumar, supra<\/i> note 2, at 232.\u00a0 The \u201cuncertainty principle\u201d was developed by one of quantum physics\u2019 great contributors, Werner Heisenberg, who postulated the theory that quantum mechanics \u201cforbids, at any given moment, the precise determination of both the position and the momentum of a particle.\u201d\u00a0 Id.<\/i>\u00a0 It was not possible to know one, without increasing the uncertainty in knowledge about the other.\u00a0 Id.<\/i><\/p>\n<\/div>\n

\n

[26] Michael Roach, Judge Facciola Addresses Competency, Ethics, and E-Discovery<\/i>, L. Tech. News, June 22, 2012.<\/p>\n<\/div>\n

\n

[27] Bennett B. Borden et al., Sanctions down; Cooperation up; Preservation, Privacy and Social Media Remain Challenging<\/i>, Williams Mullen (Dec. 17, 2010), http:\/\/www.williamsmullen.com\/news\/sanctions-down-cooperation-preservation-privacy-and-social-media-remain-challenging.<\/p>\n<\/div>\n

\n

[28] Id<\/i>.<\/p>\n<\/div>\n

\n

[29] An \u201coutlier\u201d is a statistical anomaly outside a group of otherwise patterned observation. See<\/i> Webster\u2019s Third New International Dictionary 1602 (Philip Babcock Gove ed., Merriam-Webster Inc. 2002) (defining \u201coutlier\u201d as \u201csomething that . . . is situated . . . away from a main or related body: as . . . a statistical observation not homogeneous in value with others of a sample\u201d).<\/p>\n<\/div>\n

\n

[30] See<\/i> Sue Reisinger, Kroll Study Sees Dramatic Drop in E-discovery Sanctions<\/i>, Corp. Couns., Dec. 6, 2012, http:\/\/www.law.com\/corporatecounsel\/PubArticleCC.jsp?id=1202580414356&Kroll_Study_Sees_Dramatic_Drop_in_Ediscovery_Sanctions.\u00a0 Reisinger seems to make a similar stretch by suggesting that an attorney \u201clearning curve is evident because the percent of prominent cases that imposed sanctions on parties, which had been on the rise, actually declined a whopping 10 percent in 2012, according to Kroll. . . . The [Kroll] survey, which used a non-scientific sampling of 70 major cases, found that the number of procedural disputes more than doubled over last year’s figures.\u201d\u00a0 Id.<\/i>\u00a0 Again, the outlier.\u00a0 It is interesting that the statistics for Reisinger’s 2011-2012 comparison mirror the results of the Borden article two years earlier.\u00a0 See<\/i> Borden et al., supra<\/i> note 27.\u00a0 Thus, a more than doubling of e-discovery motions practice from 2009 to 2010, and again from 2011 to 2012.<\/p>\n<\/div>\n

\n

[31] See<\/i> Borden et al., supra<\/i> note 27.<\/p>\n<\/div>\n

\n

[32] Id.<\/i><\/p>\n<\/div>\n

\n

[33] See id.<\/i><\/p>\n<\/div>\n

\n

[34] See id.<\/i><\/p>\n<\/div>\n

\n

[35] Id.<\/i><\/p>\n<\/div>\n

\n

[36] See<\/i> Borden et al., supra<\/i> note 27.<\/p>\n<\/div>\n

\n

[37] See id.<\/i><\/p>\n<\/div>\n

\n

[38] See<\/i> Sue Reisinger, EEOC 2012 Report Shows Fewer Discrimination Suits, More Investigations<\/i>, Corp. Couns., Nov. 30, 2012, http:\/\/www.law.com\/corporatecounsel\/PubArticleCC.jsp?id=1202579787314&EEOC_2012_Report_Shows_Fewer_Discrimination_Suits_More_Investigations&slreturn=20130014154033.<\/p>\n<\/div>\n

\n

[39] Id.<\/i><\/p>\n<\/div>\n

\n

[40] Monica Bay, Impatient Judges Push Lawyers to Dive into E-Discovery<\/i>, L. Tech. News, Dec. 7, 2012, http:\/\/www.law.com\/jsp\/lawtechnologynews\/PubArticleLTN.jsp?id=1202580623520&Impatient_Judges_Push_Lawyers_to_Dive_Into_Ediscovery.<\/p>\n<\/div>\n

\n

[41] Patrick Oot, Anne Kershaw & Herbert L. Roitblat, Mandating Reasonableness in a Reasonable Inquiry<\/i>, 87 Denv. U. L. Rev. 533, 539 (2010) (citing Emery G. Lee III & Thomas E. Willging, Federal Judicial Center National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules<\/i>, Fed. Jud. Center 1, 15 (Oct. 2009), http:\/\/www.fjc.gov\/public\/pdf.nsf\/lookup\/dissurv1.pdf\/$file\/dissurv1.pdf).<\/p>\n<\/div>\n

\n

[42] See, e.g.<\/i>, Suggested Protocol for Discovery of Electronically Stored Information (\u201cESI\u201d)<\/i>, United States District Court for the District of Maryland, available at <\/i>http:\/\/www.mdd.uscourts.gov\/news\/news\/ESIProtocol.pdf (last visited Feb. 4, 2013); Principles Relating to the Discovery of Electronically Stored Information<\/i>, 7th Circuit Electronic Discovery Committee (Aug. 1, 201
\n0), available at <\/i>http:\/\/www.discoverypilot.com\/sites\/default\/files\/Principles8_10.pdf.<\/p>\n<\/div>\n

\n

[43] See <\/i>Borden et al., supra<\/i> note 27; Reisinger, supra<\/i> note 30.<\/p>\n<\/div>\n

\n

[44] See <\/i>Ralph Losey, E-Discovery Gamers: Join Me in Stopping Them<\/i>, e-Discovery Team (June 3, 2012, 6:01 AM), http:\/\/e-discoveryteam.com\/2012\/06\/03\/e-discovery-gamers-join-me-in-stopping-them\/.<\/p>\n<\/div>\n

\n

[45] See<\/i> 2011 Mid-Year E-Discovery Update<\/i>, Gibson Dunn 1-2 (July 22, 2011), http:\/\/www.gibsondunn.com\/publications\/Documents\/2011Mid-YearE-DiscoveryUpdate.pdf.<\/p>\n<\/div>\n

\n

[46] The author has personally witnessed settlements ensuing quickly after a party realizes, often too late to be cured, that a potentially costly, if not fatal, e-discovery mishap yielded the adverse party a trump card.<\/p>\n<\/div>\n

\n

[47] <\/i>Qualcomm Inc. v. Broadcom Corp., No. 05CV1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), vacated in part<\/i>, No. 05CV1958-RMB (BLM), 2008 WL 638108, 88 U.S.P.Q.2d (BNA) 1169 (S.D. Cal. Mar. 5, 2008); Zubulake v. UBS Warburg, L.L.C., 229 F.R.D. 422 (S.D.N.Y. 2004).<\/p>\n<\/div>\n

\n

[48] <\/i>Phillip M. Adams & Assocs., L.L.C. v. Winbond Elecs. Corp., No. 1:05-CV-64 TS, 2010 U.S. Dist. LEXIS 85120, at *12-13, *15-16 (D. Utah Aug. 17, 2010).<\/p>\n<\/div>\n

\n

[49] Broadly speaking, practitioners at small and medium sized firms have escaped confronting the challenge that is quantum law in their practices while their colleagues at larger firms managing mega cases bore the brunt of this phenomenon in its early days. See generally<\/i> Richard N. Lettieri, Mid-to-Small Law Firm Alert: Overcoming the Growing E-Discovery \u201cSkill Gap\u201d<\/i>, The Advocate, Feb. 2012, at 12-14, available at<\/i> http:\/\/www.lettierilaw.com\/documents\/the_advocate_02_2012.pdf.<\/p>\n<\/div>\n

\n

[50] See id.<\/i> at 13-14.<\/p>\n<\/div>\n

\n

[51] Willoughby et al., supra<\/i> note 5.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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