This is the first of three posts relaying our conversation with recently retired US judge John Facciola, widely considered to be among the most influential, and prudent, authorities on technology’s impact on the law. His thought leadership, legal rulings and teaching, at his alma mater and elsewhere, have profoundly shaped the way in which electronic evidence is fundamentally approached, gathered, and protected.
Here he examines the significant consequences of eDiscovery costs on the justice system, the adequacy of eDiscovery as a fair system for dispute resolution, and why he wishes a hunch he had 20 years ago had been wrong.
Logikcull: What’s your assessment of the ability of the justice system — and by that I mean, not just courts, but legal services as well — to withstand and adapt to the incursion of technology in terms of being able to deliver just, speedy and inexpensive results?
Hon. John Facciola: It’s an extraordinary challenge. Probably no greater challenge has been faced in terms of administration of justice in this country. The costs of discovery may, in the long run, drive an entire economic class out of the federal court for lack of means to engage. It’s all well and good when monumental companies go after each other with their extraordinary resources, but if we get use to those big bills as being typical of what can be expected in cases involving electronic discovery, obviously those costs will overwhelm smaller cases involving smaller entities.
“The costs of discovery may, in the long run, drive an entire economic class out of the federal court for lack of means to engage.”
Certainly I am in despair over how the ordinary lawsuit between a single plaintiff and a moderate-sized corporation can possibly go forward unless we figure out a way to get the costs of discovery down and make them more manageable. The solutions are ahead of us. Obviously we’ve put a lot of faith in the new Rules that will soon be upon us, with their new focus on proportionality. The Federal Rules Advisory Committee is also taking up the issue of cost shifting in its next set of deliberations.
And then, obviously, [technology and services vendors] are going to have to start thinking pretty hard about how to deliver services that are needed in a means that doesn’t bankrupt the smaller litigant. That’s the challenge before us. Whether we’re equal to it, I don’t know.
There’s a wonderful recent decision by Judge Douglas Miller in the Eastern District of Virginia in the Federico case, where he was confronted by a group of plaintiffs who were living in military housing in Norfolk and discovered, they claimed, mold in their homes. They sued collectively and the issue arose over whether or not they had been making Facebook entries about this problem, and then the question of discovery of these posts arose.
When the dust had settled, the [ESI] expert had charged $20,000 and the attorneys fees were $66,000, so from the get go, we are $86,000 in the hole looking for Facebook entries. Will they be useful? Will they make any difference in this lawsuit? God only knows. But those are the problems I’m most worried about. I really believe that people should be able to get — as you put it — a prompt, and efficient and just determination of their disputes without going into bankruptcy as a condition, and facing a situation where they simply run out of money before they can complete the prosecution of the case.
“From the get go, we are $86,000 in the hole looking for Facebook entries. Will they be useful? Will they make any difference in this lawsuit? God only knows.”
Certainly in my 17 years I saw very few cases involving what I would call the middle class of America in federal courts, except in those cases where the lawyers were serving on a contingency basis, or expected or anticipated or hoped (laughs) fees would be paid by the other side because of fee-shifting statutes.
So that’s where we are, and it’s not a particularly good place. We always hope that technology will come to our rescue — and maybe it will in a magical way. That may very well be true for the big litigants who can afford it. As to everyone else, the verdict is not in, but the initial signs are not good.
Logikcull: Your answer reminds me of a keynote you gave at the University of Florida last year where you said “federal courts are becoming a playground for the rich.”
JF: And that’s not a new feeling. It’s interesting, one of the first opinions I wrote in electronic discovery was in McPeek v. Ashcroft, which occurred back in 1997. And in it, I said we couldn’t have a system of justice in America where we were paying $300,000 for an email. We always have to measure value against cost, like every other economic undertaking, using what I called (in that case) “marginal utility analysis.” So I’ve been saying this for a long, long time (laughing). I wish I hadn’t been so prescient, but we are now paying $300,000 for email — or $86,000 for Facebook entries! And now we really have to ask ourselves some tough questions about how much longer the system can tolerate this. I don’t know.
“We really have to ask ourselves some tough questions about how much longer the system can tolerate this.”
Logikcull: Much has been made of the fact that trials in federal courts are exceedingly rare, and of course one of the contributing factors is the cost of discovery — which we’ve discussed. But some have argued that discovery is just as effective a form of dispute resolution as trial. What do you make of that?
JF: There are certainly situations where discovery yields sufficient information such that it makes it obvious the lawsuit should not go forward, but be resolved promptly by a settlement. In that sense, discovery is crucial. But there are other instances where you kind of know everything you are going to know about the matter: you know what the disputed elements are and what evidence each side has. At that point, you can probably resolve that matter as you see fit without additional discovery.
It’s impossible to generalize. There are certain cases in which discovery is crucial: it brings forth the fundamental facts without which the case cannot be resolved. There are other cases, though, where discovery becomes a long and expensive process that I’m afraid only confirms what we already knew. So what we really have to do is resist a knee-jerk reaction to say, “We have this type of lawsuit, which means we have to have as much discovery as is typical in other similar types of cases.”
That’s what this proportionality analysis is all about. It’s hammering home what is a really crucial assessment. I don’t know if those Facebook entries in the case before Judge Miller are going to turn the tide. I have no idea. But I do know we’ve already spent $86,000 to find them. And since we don’t know what they contain until we get them, it’s impossible to judge how significant they were before we found them (laughing). That’s always the problem.
“There are other cases, though, where discovery becomes a long and expensive process that I’m afraid only confirms what we already knew.”
So you get back to this notion of cooperation and transparency. In many respects, if there is the kind of transparent cooperation without resistance between parties over the disclosure of information, then maybe we get closer to the ideal solution. I don’t know. But it was my experience that, when cooperation and transparency occurred, you’d advance the prompt settlement of a case remarkably.