That great philosopher, Yogi Berra, once opined, “If people don’t want to come out to the ballpark, how are you going to stop them?”  Ok, it might be a stretch to call Yogi a great philosopher, but he’s certainly one of the great thinkers of our time (even if he “didn’t say most of the things (he) said.”)  Yogi was, of course, talking about baseball but he could just as easily have been talking about an attorney who was steadfastly unwilling to cooperate with the court.  “If an attorney don’t want to cooperate, how are you going to stop them?” Yogi could have asked.

In a recent case before the District Court for the District of Columbia, Defense counsel asked the court for permission to produce documents after a trial.  Now, you might think it’s absurd to even think about asking the court to consider allowing the submission of evidence after a trial has begun but in this case that’s exactly what happened.

The plaintiff class in this case had waited six years for the Court to decide whether they were entitled to relief for the District of Columbia’s failure to provide them with free public education as required by the Individuals with Disabilities and Education Act.

According to court documents, in the days immediately preceding the commencement of the trial the District continued to bombard plaintiff’s counsel with thousands of emails and said that the avalanche would continue on a “rolling basis” even after the conclusion of the trial. 

On the first day of the trial the plaintiff’s counsel moved the Court to order the production of the rest of the emails within a week and hold that the District waive any objections (including privileges) to the documents.  The Court asked defense counsel why the emails were coming to light after six years.  Counsel responded by saying that the new emails were the result of a “supplemental search” that had yielded tens of thousands of emails that had to be reviewed for relevance and privilege. 

In its decision the Court wrote:  “Even after being called out in a Court order, the District – its head apparently buried in the sand – remained committed to its corrupt production strategy…The District’s decision to ignore the bulk of this Court’s…opinion explains, in part, why it continues…to implement its ill-conceived ‘rolling’ document production scheme…

“…Even after being recently sanctioned for discovery violations and despite benefiting from multiple extension of time, the District failed to comply with this Court’s order…Its bare discovery are just one of many reasons for the Court’s decision to order its privilege objections waived…The District has absolutely no excuse for its behavior in this case…If at any point the District realized that it was behind, or for any other reason could not comply with this Court’s Orders, it should have informed the Court of the problem…

“…The Court’s purpose in ruling that the District had waived privilege wasn’t limited to adjusting the District’s behavior.  Instead, the Court sought to specifically deter the District from misbehaving in this way in the future and to generally deter other parties from doing the same by putting them on notice of the fact that this Court takes the Federal Rules’ discovery framework seriously.”

The behavior of the District can, at best, be described as abhorrent.  Its eDiscovery strategy, if you can call it that, was questionable (at best). Is this an eDiscovery strategy your company could live with?  Is it willing to risk the wrath of the Court? 

The Memorandum Opinion was certainly more eloquent than anything Yogi could have written.  But there’s no way its words could be misinterpreted.  And more importantly, there’s no way anyone would ever chuckle at their meaning.

Northern California’s gas and electricity provider, PG&E, recently announced that it won’t be able to meet a June 20 deadline to provide documents related to the welding of natural gas pipes in the San Francisco Bay Area.  Last September a pipeline that ran through the city of San Bruno exploded killing eight people and destroying nearly 40 homes.

The California Public Utilities Commission ordered the company to produce documentation related to the maintenance of the pipes, which stretch more than 5,700 miles throughout Northern California, by June 20.  The commission also threatened to impose a $3 million fine if PG&E is unable to find the records by that date.

This week PG&E announced that it will not be able to meet the June 20 deadline and says it will be unable to produce the records until December 31, 2012, a full two years after the explosion.  The company said the welding records are available but it “seriously underestimated the magnitude of the task” of collecting them because the information is scattered in remote offices.

PG&E’s response to the CPUC’s request for information is hardly a model for how eDiscovery should be conducted.  Can you imagine your company being ordered to produce documents related to an eDiscovery matter and saying you’re going to need an additional 18 months because of the magnitude of the task?  It’s unlikely that you would be afforded such a generous extension.

But when the information is turned over to the CPUC it will only signal the beginning, not the end, of this story. Surely there will be class action suits filed against the company and, in all likelihood, PG&E will be required to provide even more information as a result. Does that mean that those affected most by the accident, the residents in San Bruno, may be facing many more years before receiving restitution?  Probably.  And unfortunately for some, compensation will come too late because their lives have already been ruined.

How would your company fare if it was hit with a $3 million fine?  How would your customers and investors react if your company needed more than two years to find records that affect the well-being of the general public?  Is your company prepared if it’s asked to produce tens of thousands of documents in a short period of time?

Everyone involved with eDiscovery should all keep an eye on this investigation as there will be numerous lessons for what to do (and what not to do) when conducting an eDiscovery matter.

During a press conference earlier this week U.S. Attorney General Eric Holder said that the Justice Department is committed to working with states to resolve the conflict between state and federal laws regarding the use of medical marijuana.  Currently 15 states and the District of Columbia allow citizens who suffer from chronic pain and other medical ailments to use marijuana with the recommendation of a licensed physician.

While state laws may allow use of pot for medicinal purposes federal law classifies marijuana as illegal.  The disconnect trickles down to employees and employers who are unclear how to cope with laws that conflict.

Some businesses have drug-testing programs that permit them to conduct random tests on employees.  And, many of those companies also have policies that allow employees to confidentially disclose that they are using marijuana so if they test positive for THC, marijuana’s active ingredient, the results can be explained.

But can honesty and full disclosure work against an employee if their company is required to provide personnel records as part of an eDiscovery matter?  Some employment law experts say, yes.

By definition employee records are confidential but if they become part of a lawsuit (such as an employee class action), private information can become part of the public record.  Imagine the consequences if knowledge of state-approved use of marijuana as part of an employee’s treatment of chemotherapy were to fall into the hands of a health insurance carrier.  Or, imagine that same information falling into the hands of a potential future employer.  What would the consequences be to the employee?

So how should businesses that are called upon to provide documents as part of an eDiscovery matter ensure the privacy of employees?  One way is through managed document review.  Using technology to identify the most relevant documents for a case is the most cost-effective and efficient way to search through volumes of information but it’s imperative that attorneys conduct the final document review.  Lawyers can check to make sure that any information such as names, titles or employee numbers that could potentially identify a specific person are dealt with appropriately.

The practice of document review and privacy isn’t limited to employee/employer cases.  The same strategy should be put in place for victims of crimes and in cases where children are involved.

You need to ask yourself:  are you relying exclusively on technology to review information when conducting eDiscovery or are you using a combination of technology and people to conduct a more comprehensive review of the information?  What’s your experience and what are your thoughts?

June 1 marked the start of U.S. hurricane season.  States along the Atlantic basin are expected to see an above-normal hurricane season this year according to the NOAA Climate Prediction Center.  It’s predicted that between 12 and 18 named storms could hit the U.S. by October 31.

When hurricanes (or other natural disasters) hit, the Federal Emergency Management Agency deploys highly trained and experienced experts to provide on-the-spot assistance to natural disaster victims.  FEMA professionals help victims find temporary housing, assist with filling out insurance claims and provide much needed financial aid for immediate needs.  FEMA representatives have millions of dollars at their disposal to help rebuild communities.

Along with providing aid to victims of natural disasters FEMA workers need to be mindful that people with nefarious motives sometimes try to take advantage of tragedy for their own benefit.  That’s why the agency assigns its most experienced field workers to large-scale natural disaster areas. 

Can you imagine if the day-to-day management of millions of dollars of aid for disaster zones was left in the hands of untrained and unmanaged contract employees?  The idea sounds crazy right?  Maybe it’s not so farfetched. 

Each day million-dollar document review projects utilize contract reviewers with little or no oversight. Too often legal professionals assume that document review is turnkey – hire some contract attorneys, give them the documents and away they go.  It’s not quite that simple.                                                                                           

There’s no substitute for an experienced project manager who oversees the project from beginning to end including properly training reviewers, measuring progress, and testing the accuracy of results. Without proper management, review projects have been known to take double the time (and expense) and produce inconsistent and inaccurate results – which can have dire consequences for the matter.                              

Think about it, would a corporation ever allow a multi-million dollar project to be only loosely managed?  Of course not (knowingly). 

How much do you know about your last document review project? Do you know the name and qualifications of the person who managed the reviewers, how many documents were responsive, and how much you paid per document? If not, the answers may surprise you.