This is part three of our three-part conversation with recently retired United States judge John Facciola, whose work over the last two decades has largely shaped the scope and application of evidentiary law. The previous installments of the interview are available here.
Below we pick up the conversation as Judge Facciola describes the appropriate role of the judiciary in assessing, and vetting, the effectiveness of different search methodologies. The opinions to which he refers are Judge Paul Grimm's ruling in and his own in O'Keefe, both of which suggest that such assessments generally require the input of experts, such as technology consultants and statisticians. His response follows a discussion of the Daubert standard and its applicability to technology-assisted review.
Hon. John Facciola: I appreciate that, after we wrote these opinions, there were some bloggers that said we were the best things that happened to vendors since free t-shirts. But I'm not in the business of supporting an industry and I really don't care about that. I'm certainly not suggesting that you cannot have one of these (complex, ESI intensive) cases and that lawyers can't figure out how to do these searches for ESI. I'm not suggesting that at all. I am saying that when lawyers differ as to the efficacy of the searches and their battle involves linguistics or statistics, the dispute may require testimony from an expert so that the court has sufficient information to resolve it.
"AFTER WE WROTE THESE OPINIONS, THERE WERE SOME BLOGGERS THAT SAID WE WERE THE BEST THINGS TO HAPPEN TO VENDORS SINCE FREE T-SHIRTS. BUT I'M NOT IN THE BUSINESS OF SUPPORTING AN INDUSTRY."
Logikcull: I wanted to ask you about something that we're seeing in the context of post-judgement cost recovery, which is that some parties who've prevailed at trial or otherwise secured a judgement on the merits and who are looking to recover eDiscovery costs have asked courts to seal the pricing information on their vendor invoices. And judges, at least in the instances I've seen, have approved the sealing of that information on the grounds that the competitive disadvantage that would come to the prevailing party from having that information "out there" outweighs the public interest in transparency. What's your take on that?
JF: Well, I'd have to look at the individual cases but it's important to bear in mind that costs under 28 U.S.C. §1920 are taxed by the clerk -- it's a clerical function. And for hundreds of years, there have been, submitted with lawyers' applications of costs, bills rendered to the lawyers by third-party providers, whether they were investigators or reporters or Xerox charges. To my knowledge, that information is usually part of the public record and in all my years as a judge, I never saw an application to seal it on the grounds that one reporter (would suffer) a competitive disadvantage versus the other reporters. But those are pretty standardized charges and there wasn't much public interest.
In general, I don't believe there is an overwhelming public interest in knowing that vendor X charged company Y this amount of money. And if there is a compelling claim that knowing that information would put that company at a competitive disadvantage and a court was persuaded of that, the court certainly has the discretion to protect that party. But it may be sufficient to protect the party by redaction of its name so that the information upon which the court acts to either allow or disallow costs is known.
One of the premises of the First Amendment's presumption of access to judicial records is that judges are public figures, and when they render decisions, you should be able to know why they did what they did. So in the court's determination to award or disallows costs, it may be wise to split the baby in half by disguising the vendor's identity but nevertheless make available on the public record information about the costs at issue.
"THE FIRST AMENDMENT'S PRESUMPTION OF ACCESS TO JUDICIAL RECORDS IS PREMISED ON THE IDEA THAT JUDGES ARE PUBLIC FIGURES, AND YOU SHOULD BE ABLE TO KNOW WHY THEY DID WHAT THEY DID."
Logikcull: We're going to wrap up, but I wanted to know if there is a question you wish your interviewers would ask, but you've not fielded thus far.
JF: (Laughing) No, no! I've been interviewed so many times, I can't imagine!
There has been a lot of fuss about the new California ethics opinion and its significance. So the question of competence is still on our plate and I suppose a question that's never been asked to me is, "Why are lawyers not more competent than they are with reference to technology and information?" And that, I think, is a historical question. My own answer is that there is nothing new here. I was on a panel with a professor from Villanova and she explained that research showed that lawyers did not use telephones for about the first 10 years after their invention because they thought it was somehow inappropriate to talk to their clients on the phone. You wonder if they used the elevator for crying out loud! Nobody has ever asked me why lawyers are alike and it's a good thing they haven't because I have no bloody idea.
"RESEARCH SHOWS THAT LAWYERS DID NOT USE TELEPHONES FOR ABOUT THE FIRST 10 YEARS AFTER THEIR INVENTION BECAUSE THEY THOUGHT IT WAS SOMEHOW INAPPROPRIATE TO TALK TO THEIR CLIENTS ON THE PHONE."
But it's always funny. You know, in the courtroom, I used to have a little ELMO (an electronic evidence presenter) machine and there is absolutely nothing simpler than ELMO-ing. You put in the piece of paper and hit a button and the image is projected. But I can't tell you how many lawyers approached the ELMO as if they were approaching a cobra! And they say, "Judge, how does this work?" And I say, "You see that button that says 'On/Off?' Why don't you start there."
So I love teasing lawyers about their technological competence and perhaps lack of it, but of course, they get me back in other ways -- and judges aren't exactly known for their technical competence either!
As told to Robert Hilson, a director at Logikcull. He can be reached at firstname.lastname@example.org.