An Interview with Judge Paul Grimm, Chief United States Magistrate Judge, 1 of 3

Judge Paul Grimm, Chief United States Magistrate Judge for the U.S. District Court for the District of Maryland, is a thought leader and at the forefront of knowledge in the field of electronic discovery. Judge Grimm has authored multiple case opinions that have become the basis for rule changes to the rules of civil procedure. He continues to be an expert in the field and he graciously took some time to talk to Discovery Brain about his knowledge and experience.

Part 1 of 3.

Discovery Brain: How did your expertise and awareness about eDiscovery evolve over time? How did you become a thought leader in eDiscovery?

Judge Grimm: There was a gradual recognition in the court system of the importance of digital communications media and how that’s everything out there, whether its text messages or email. When all of this started, Facebook and Twitter didn’t even exist and no one even conceived of them. The notion of digital media – digital photographs, social media, text messages, email, websites, cloud computing – whatever the areas are have become over time flashpoints, hotspots in this area. The very beginning awareness about how we needed to recognize the distinction between paper-pen documents and electronically stored information began more than ten years before the 2006 changes to rules of civil procedure. So we’re really going back now almost 15 years to when the very first awareness of the need to deal with this area on its own.

My first direct involvement was in 2003 when I had a case come to me where there were a number of discovery issues related to electronic evidence and as I looked into the discovery issues and looked at the existing rules, suddenly it became clear to me that this was a whole new frontier. Imagine 2003, think about your how digital world as an individual has changed now versus then. Then, I had a laptop, a desktop, and a cellphone. Now I have an Ipad, smartphone, work desktop, Netbook, a home computer and a personal cellphone. We have all multiplied our digital footprint since that time. And it became aware to me that everything in our life in our country, whether its social, political, religious, cultural, scientific, economic, whatever it is – all these areas of our lives are affected through communication. All litigation in courts involves the interaction between individuals, whether they’re in their individual or corporate capacity and that interaction is increasingly digital. Technology never sleeps. It always moves forward and the courts struggle to keep up with it. So in the course of dealing with that case in 2003, I realized that this was an issue that was going to continue to be important and you could never solve it by having rules and cases that were tied to any particular technology because technology was going to change. The rules had to be forward thinking enough to anticipate the use of changing digital technology because the disputes the courts are called upon to resolve are going to involve individuals using these devices in their own lives. Thus, the courts faced the challenge to either become irrelevant because they were no longer capable of dealing with disputes that involve rapidly changing technology or the courts have to develop the ability to deal with and manage these disputes in a way that made sense.

That took me to a 2005 opinion I wrote in Hopson v. Mayor and City Council of Baltimore that dealt with some problems in the proposed changes to the rules of civil procedure dealing with electronic discovery, particularly the possibility of privilege waiver. If you entered into claw-back or quick-peek agreements – which the rules of civil procedure were suggesting in the changes to the rules, which became rule 26B5b on post production privilege assertion procedures – there was a little footnote that said these agreements don’’t say that if you do these things, you won’t have waived privilege because the rules can’t create or abrogate an evidentiary privilege, which requires an act of Congress. And when I saw that, I wrote this opinion that talked about the danger out there of so-called quick peek and claw back agreements. This published case law was picked up by the advisory committee for the rules of evidence and formally became Rule 502 which deals with the law of voluntary waivers of the attorney-client privilege or work product protections.

Once that started happening, I got heard of because I referred to the advisory committee materials and found them very helpful to understand this area and I became active in the Sedona Conference. I started doing work with the State of Maryland and they adopted their own rules of civil procedures dealing with electronic information. They asked me to be a consultant to their rules committee to help them understand how federal Courts dealt with eDiscovery. That in turn led to exposure in teaching some classes and writing additional opinions.

In 2007, I became concerned that all the emphasis was placed on questions of discovery and not enough concern was being paid to what you do after you get the ESI, so I authored the Lorraine v. Markel case, which was the first comprehensive evidentiary review about the potential evidentiary issues associated with all the various types of digital evidence. The opinion was meant to be of some assistance to lawyers and judges to understand that while the technology was changing faster than we could probably come to grips with it, the rules that deal with whether it’s admissible or not must be addressed. Remember discovery is supposed to happen for a reason. It’s not just happening on its own. It’s meant to identify facts that are necessary to settle or resolve on motions or through trial. If people weren’t aware of what they had to do to get this stuff into evidence during the discovery phase when they could influence a settlement or resolution, they were potentially spending huge amounts of money only to be left wanting a trial because they couldn’t get it into evidence.

After that, I looked into some of the issues associated with a fundamentally important area in the modern practice of civil litigation which is that discovery must be approached on a cooperative basis. That doesn’t mean that you give up meritorious argument or not have disputes, but it just means you argue over the things that are important. You cooperate on the things that are mutually beneficial to your clients. For example, look at keyword searching. If I give you just a list of keywords and tell you to go search them and you don’t have any input on that, then what’s likely to happen is you’re going to run a search that will have poor recall and precision rates that won’t produce helpful information, which will lead to disputes and further expenses. It’s much better that we cooperatively design a search methodology. It lowers costs, gets the materials produced faster and avoids motions where people run out of money. The need to cooperate is inherent in the rules of civil litigation. Those that advocate a confrontational approach to discovery for the sake of confrontation really do not understand what’s involved in the adversary system. That was emphasized in Mancia v. Mayflower Textile Services Co. decision. Thereafter my most recent discussed decision was the Victor Stanley, Inc. v. Creative Pipe Inc. case dealing with the duty to preserve.

Part of the entire evolution, I have become interested in the fact that in 2009 a series of attorney questionnaires from a variety of sources said federal litigation is too expensive and that in turn has led to my concern with how we can manage litigation so that it is proportional to what’s at issue in a case. This means you get the right amount of discovery so that the parties have fair discovery and nothing is hidden or lost, but you don’t waste money. In no system does it make sense that you spend $5M to resolve a case that’s worth $1M. With the volume of digital evidence out there and the number of people who have the same evidence in different locations, parties spend enormous amounts of money trying to figure out what you have before they can then even talk about settlement or trial. So the real challenge for the profession and for the courts is to make it so that we don’t become so expensive that people can’t afford to come here.

Finally, in 2009, the Chief Justice of the United States appointed me to the advisory committee for the rules of civil procedure. Since then, I have been privileged to actually serve on the rules committee and be apart of the deliberative process involving lawyers and judges ad members of public trying to identify how good our current rules operate and if they need revisions.

 

In part 2 of the interview, Judge Grimm talks about controlling discovery costs and shares his thoughts on sanctions. Check back in the coming days for this!