E-discovery errors take toll on judges, too

When a judge like U.S. Chief Magistrate Judge Paul W. Grimm goes out of his way to alert attorneys at large, either it is need-to-know information or hizzoner is trying to nip a bothersome behavior in the bud.

There appeared to be a bit of both in last week’s memo (PDF) in the hotly contested case between Dunkirk-based Victor Stanley Inc. and Southern California-based Creative Pipe Inc.

After resolving the question at hand (deciding that Creative Pipe hadn’t made reasonable efforts to avoid waiving attorney-client privilege in electronic discovery), Grimm took the opportunity to lecture on privilege logs and in camera review.

Privilege logs are commonly used during discovery to identify the documents withheld and note why they’ve been withheld — without, of course, revealing their specific substance.

“In actuality, lawyers infrequently provide all the basic information called for in a privilege log, and if they do, it is usually so cryptic that the log falls far short of its intended goal of providing sufficient information to the reviewing court to enable a determination to be made regarding the appropriateness of the privilege/protection asserted without resorting to extrinsic evidence or in camera review of the documents themselves,” Grimm wrote.

Grimm segued to the result of such ineffective privilege logs: judges having to scrutinize the documents to solve what the attorneys couldn’t on their own.

“In camera review, however, can be an enormous burden to the court, about which the parties and their attorneys often seem blissfully unconcerned,” Grimm wrote.

He detailed the manifold factors and subfactors a judge must consider for each document submitted. Multiply that effort by 165, the number of documents at issue in the Victor Stanley case.

Grimm, a vocal proponent of meet-and-confers to resolve such problems short of judicial intervention, cited seven passages from federal court decisions cautioning against routine use of the court’s time in this way.

Lawyers would be wise to listen for lessons in Grimm’s gripes.

BRENDAN KEARNEY, Legal Affairs Writer

Creationism in sheep’s clothing?

Whether it’s “creation science” or “intelligent design,” courts have generally barred public schools from teaching religious belief in the science classroom.

But according to an article in today’s New York Times, people who emphasize the “theory” in the theory of evolution hope another species of argument will prove to be a little more fit. They hope to convince the state education board of Texas to include a discussion of the “strengths and weaknesses” of evolution in the curriculum.

While proponents say the strengths-and-weaknesses movement is just trying to provide balance in the classroom — “Why in the world would anybody not want to include weaknesses?,” the chairman of Texas’ education board says in the article — critics call this another example of “antievolution policies in sheep’s clothing.”

What do you think?

CHRISTINA DORAN, Assistant Legal Editor

Which family-friendly policies really work?

I need your help, dear blog readers.

I’m working on a piece about family-friendly law firm policies, things like paid maternity and paternity leave, part-time or flextime work, even space for new mothers to express breast milk. I’ve collected survey data from 17 of the biggest firms in the state on what sorts of accommodations they offer to lawyers with families.

Now, I’m reporting the story and want to talk to current and former law firm types about which policies help keep family-oriented lawyers in the workplace and which don’t. I want to hear about your experience balancing firm life with family life, whether the end result was a corner office or a new job.

I understand that this is a sensitive topic, so if you have something to say but would rather not be quoted by name in the story, that’s OK. Drop me a line at caryn.tamber@mddailyrecord.com or call 443-524-8157. (You’ll get a message that I’m out of town at a conference for the rest of the week. I’ll be back Monday and will get in touch then.)

CARYN TAMBER, Legal Affairs Writer