PARADIGM SHIFTS IN E DISCOVERY LITIGATION: COOPERATE OR CONTINUE TO PAY DEARLY

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1 PARADIGM SHIFTS IN E DISCOVERY LITIGATION: COOPERATE OR CONTINUE TO PAY DEARLY Megan L. Pedersen and Robert C. Manlowe * The cost of pretrial discovery has grown tremendously in recent years as discovery of electronically stored information ( ESI ) has come of age. Costs climb exponentially higher when counsel misuse or abuse the discovery process, obfuscate collection and production procedures, or fail to recognize that discovery of ESI requires new skills and knowledge that do not apply to discovery of filing cabinets and banker s boxes. The resources of clients, counsel and courts are quickly overtaxed in this new era when counsel make unreasonable demands for information or fail to carefully think through the process of searching for and collecting ESI. This past year, however, signals a collective effort by the federal courts and the leaders at The Sedona Conference, to curb the runaway costs and the abuse of the rules by way of a new paradigm. In several recent opinions, federal district courts set forth explicit guidance to attorneys regarding their duties, under the rules of civil procedure, in requesting and responding to discovery. Distilled to its essence, the courts guidance is founded on principles of cooperation, fairness, reasonableness, and common sense. This article outlines seven core principles that emerge from these cases as a prescribed code of conduct for attorneys to follow in conducting discovery. 1. Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. The predominant method for culling through huge caches of computerized information is to use keyword searches. Boolean keyword searching (searching for keywords using connectors like and, or, or within so many words) is only about 22 to 57 percent effective in locating responsive documents. Jason Krause, In Search of the Perfect Search, ABA JOURNAL, Apr. 2009, at 41. Because it is becoming more well known that keyword searching is not very effective, courts have begun to take a dim view on situations where parties have unilaterally crafted search term lists or failed to talk to the people who actually wrote the documents to find out what words to look for to find more responsive information. Early in 2008, Magistrate Judge Facciola, one of the leading jurists on e discovery issues, took on the topic of keyword searches. United States v. O Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), involved a prosecution of a Department of State employee for allegedly receiving, quid pro quo, gifts and other benefits from his co defendant for expediting visa requests for employees of codefendant s company. Resolving a discovery dispute between the parties, Judge Facciola observed the perils of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate discussion with those who wrote the s. He further cautioned: Whether search terms or keywords will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer

2 Id. at 24. technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the key of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. It turned out that O Keefe was just an opening salvo on the inadequacies of keyword searching and counsel s inability to address them. Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008) (Facciola, M.J.); Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) ( While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge. ); SEC v. Collins & Aikman Corp., 2009 WL (S.D.N.Y. Jan. 13, 2009) (quoting Jason R. Baron, David D. Lewis, and Douglas W. Oard, TREC 2006 Legal Track Overview, available at (noting in a sophisticated study that compared to more complex and costly techniques, Boolean searching located only 57% of known relevant documents, while expert manual searching located 68%)). Most recently, Magistrate Judge Peck, in the Southern District of New York, issued a wake up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or keywords to be used to produce s or other electronically stored information. William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., No. 07 Civ (LAK)(AJP), 2009 WL at *1 (S.D.N.Y. Mar. 19, 2009). The case involved a multi million dollar dispute over alleged defects and delay in the construction of the Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. The Dormitory Authority of the State of New York ( DASNY ) was the owner of the project. Non party Hill International was DASNY s construction manager. DASNY agreed to produce Hill s project related documents and ESI to the other parties to the suit. The parties, however, could not agree on how to produce Hill s s in a way that separated out projectrelated s from Hill s unrelated s and so they sought the court s intervention. Judge Peck proposed a set of keyword searches for the parties to use, but noted his discomfort with being put in the position of having to craft a keyword search methodology for the parties, without adequate information from the parties and Hill. Id. at *1. 1 After strongly endors[ing] The Sedona Conference Cooperation Proclamation the court admonished the parties: 1 At the same time, the court did not pass up the opportunity to exemplify why it is unhelpful to appoint a lawyer in charge of designing keyword searches. Regarding DASNY s proposed search terms, Authority, and Dormitory

3 Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESIʹs custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of false positives. It is time that the Bar even those lawyers who did not come of age in the computer era understand this. Id. at *3; accord SEC v. Collins & Aikman Corp., No. 07 Civ. 2419(SAS), 2009 WL at *12 (S.D.N.Y. Jan. 13, 2009) (finding the SEC s blanket refusal to produce any incoming or outgoing e mails unacceptable and ordering the parties to meet to attempt to negotiate a reasonable search protocol (considering the use of appropriate search terms and appropriate limitations of subject matter and date)). The Sedona Conference Cooperation Proclamation is a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a just, speedy, and inexpensive determination of every action. The Sedona Conference Cooperation Proclamation at 1 (July 2008) (quoting Fed. R. Civ. P. 1). 2 As of January 2009, the Cooperation Proclamation was publically endorsed by over 40 judges around the country. It sets forth sound reasoning that cooperation in discovery is consistent with zealous advocacy: Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients interests it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict. Id. The Cooperation Proclamation also explains that cooperation is required by the Federal Rules of Civil Procedure and provides a list of methods to accomplish cooperation: Utilizing internal ESI discovery point persons to assist counsel in preparing requests and responses; Exchanging information on relevant data sources, including those not being searched, or scheduling early disclosures on the topic of Electronically Stored Information; Authority, the Court cheekily commented, The Court is no keyword expert, but if one is searching for Authority, to also search for Dormitory Authority is clearly redundant. William A. Gross Constr. Assocs., at *1. 2 <

4 Jointly developing automated search and retrieval methodologies to cull relevant information; Promoting early identification of form or forms of production; Developing case long discovery budgets based on proportionality principles; and Considering court appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes. The authors recognize that it is unrealistic to expect a sudden outbreak of cooperation. To accomplish the paradigm shift, the Sedona Conference has stated it will promote awareness of the need and advantages of cooperation; commit to develop a detailed understanding and articulation of the issues and changes needed to obtain cooperative fact finding; and develop and distribute toolkits that can be used for education and training. 2. Counsel should attempt to reach agreement on a scope of discovery that is proportional to the estimated damages in the case. Magistrate Judge Paul Grimm has endorsed the Cooperation Proclamation and often forces parties to cooperate on e discovery issues. For instance, in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), Judge Grimm was confronted with a plaintiff s excessive and overly burdensome requests and a defendant s inadequate discovery responses. In light of the nature of the case and the relatively modest damages for each plaintiff, Judge Grimm asked the parties to attempt to quantify a workable discovery budget that was proportional to what was at issue in the case. With this objective in mind, he ordered the parties to take the following steps: Estimate the likely range of provable damages that foreseeably could be awarded if plaintiffs prevailed at trial. For purposes of this analysis, the parties should assume the pending motion to certify a collective action would be granted because doing so would allow the parties to gauge the worst case outcome defendants could face. Plaintiffs counsel should also estimate their attorneys fees. Plaintiffs and defendants counsel should discuss the amount and type of discovery already provided, and then discuss the additional discovery still sought by plaintiffs to determine whether plaintiffs legitimate additional discovery needs could be fulfilled from non duplicative, more convenient, less burdensome, or less expensive sources than those currently sought by plaintiffs (the Rule 26(b)(2)(C) factors ). The burden is on the party challenging the discovery requests provide a particularized factual basis to support any claims of excessive burden or expense.see generally CBTFLINTPARTNERS, LLC v. RETURNPATH, INC., 2009 WL (N.D.Ga. Dec. 30, 2009) (ordering plaintiff

5 in a patent infringement action to pay more than $268,000 in costs to defendants for the services of a computer consultant hired to fulfill broad discovery demands). The parties counsel should then attempt to reach an agreement about what additional discovery (and from what sources) should be provided by defendants to plaintiffs. In doing so, they should consider phased discovery, so that the most promising, but least burdensome or expensive sources of information could be produced initially, which would enable plaintiffs to reevaluate their needs depending on the information already provided. Any unresolved issues should be identified in a status report to the court. Id. at Judge Shira Schindlin echoed this approach in SEC v. Collins & Aikman Corp., noting that proportionality considerations required the SEC, which initiated the action, to conduct a broader search of documents than previously executed and that [t]he calculus might differ where the Government must defend against allegations that may have little merit but can be enormously expensive to litigate WL *9 n.65; see also Kemp v. Harris, 2009 WL (N.D.Md. Sept. 22, 2009) (denying defendant s Motion for Sanctions, or, Alternatively, to Compel Discovery Responses where, although plaintiffs failed to provide any justification for failure to timely respond to discovery requests, defendant failed to make good faith effort to resolve matter without court s involvement). In sum, proportionality concerns dictate that opposing counsel communicate at the outset of a case regarding discovery requests relative to case value; if they do so intelligently, creatively, and without trying to hide the ball, more discovery disputes will be resolved without court and the potential sanctions that may follow. 3. Boilerplate discovery requests and objections alike violate the Federal Rules of Civil Procedure. In Mancia, Judge Grimm also counseled litigants against the unproductive use of boilerplate discovery requests and boilerplate or kneejerk discovery objections. He based his admonishment on Fed. R. Civ. P. 26(g), [o]ne of the most important, but apparently least understood or followed, of the discovery rules.... Id. at 357. The rule requires that every discovery disclosure, request, response or objection must be signed by at least one attorney of record, or the client, if unrepresented. Judge Grimm s advice to counsel to stop and think before requesting or responding to discovery. Id. at 357 (The Advisory Committee s Notes to Rule 26(g) state that the rule provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.... ).

6 Judge Grimm noted the tendency of lawyers to serve interrogatories and document production requests that are far broader, more redundant and burdensome than necessary to obtain sufficient facts to enable them to resolve the case through motion, settlement or trial: Id. at 358. The rationalization for this behavior is that the party propounding Rule 33 and 34 discovery does not know enough information to more narrowly tailor them, but this would not be so if lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost to all parties is proportional to what is at stake in the litigation. Judge Grimm was even less tolerant of boilerplate or reflexive but not reflective objections to discovery requests of the breed advanced by the defendants (i.e., objecting on grounds that a discovery request is overbroad and unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible in evidence ) Id. Because Rule 33 and 34 responses must state objections with particularity, any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. Id. at 359 (citing several federal district court cases overruling general objections which fail to explain how they are applicable to specific document requests and overruling the assertion of a general objection to the extent it may apply to particular requests for discovery). Judge Grimm s words to the litigants before him are cautionary for all members of the bar: Id. at 364. The failure to particularize these objections as required leads to one of two conclusions: either the Defendants lacked a factual basis to make the objections that they did, which would violate Rule 26(g), or they complied with Rule 26(g), made a reasonable inquiry before answering and discovered facts that would support a legitimate objection, but they were waived for failure to specify them as required. Neither alternative helps the Defendants position, and either would justify a ruling requiring that the Defendants provide the requested discovery regardless of cost or burden, because proper grounds for objecting have not been established. 4. Whether documents are produced organized by the subjects of the request or organized as they are kept in the usual course of business, the documents must be organized so as to be useful to the requesting party and to avoid injecting unnecessary time and cost into litigation.

7 In United States v. O Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), the defendants complained that the government produced the written documents in a manner which made it impossible to identify the source or custodian of the document, opting instead to produce the documents in an undifferentiated mass. The government argued in response that the authors and recipients of the documents are self evident from the documents themselves. Once again, Judge Facciola fashioned a solution based on the confer and cooperate principle. He ordered the parties counsel to meet, at which time defendants should produce for the government s inspection all documents that they claim cannot be identified on their faces by author, recipient (if any), date of creation and consulate location. The parties should then attempt to arrive in good faith at a stipulation as to the missing information. Id. at 21. As to defendant s objection to the government s production of ESI in the form of electronic images (PDF or TIF) instead of native files, the Court first noted the rule that a party must produce documents as they are kept in the usual course of business or organized and labeled to correspond to each discovery request. Applying these principles to the matter at hand, the Court concluded that the government s production of the electronically stored information in PDF or TIFF format would suffice, unless defendants can show that those formats are not reasonably usable and that the native format, with accompanying metadata, meet the criteria of reasonably usable whereas the PDF or TIFF formats do not. Id. at 23; accord Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008) (Facciola, M.J.) (ordering plaintiff s computer forensics examiner to confirm or disconfirm plaintiff s concern that making a mirror image of defendant s computer is insufficient to preserve all information, thus requiring preservation of defendant s hard drive in its original condition until conclusion of litigation). In SEC v. Collins & Aikman Corp., the SEC, like the government in O Keefe, responded to defendants discovery requests by dumping potentially relevant documents, in this case 1.7 million of them, on defendants on the grounds that the production comports with the manner in which the documents are kept in the usual course of business. Id. at *3. Defendants, however, were aware that the SEC had already segregated documents into approximately 175 file folders that correlate to specific factual contentions and that these documents are now maintained in the usual course of agency business. The SEC maintained that the segregated documents constituted a compilation that is attorney work product. While noting that some courts, including the Second Circuit, afford work product protection to the selection and compilation of documents, the Court declined to do so here for four reasons: (1) given Fed. R. Civ. P. 11 s requirement that all parties have evidentiary support for the factual contentions in their pleadings, producing compilations of documents that support the factual allegations of a complaint reveals no more than that already revealed by the filing of the complaint; (2) defendants had demonstrated substantial need for the materials; (3) defendants could not, without undue hardship, obtain their substantial equivalent by other means where a search of the document databases using appropriate search terms would involve substantial time and

8 money; and (4) a party may not maintain that records kept in the usual course of business are kept in a haphazard fashion; the documents must be organized in some way. Id. at Lawyers infrequently provide all the basic information called for in a privilege log. Before he penned Mancia, Judge Grimm authored Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), one of the first cases in the recent trend of cases calling for a paradigm shift in how counsel and litigants conduct discovery. In Victor Stanley, the parties asked the Court to determine whether ESI documents defendants claimed to have inadvertently disclosed were protected from discovery on the basis of attorney client privilege and the workproduct doctrine. Defendants belatedly provided plaintiff with a series of privilege logs, purportedly identifying the documents that had been withheld from production pursuant to Fed. R. Civ. P. 26(b)(5). While condoning the common use of a privilege log to assert privilege/protection as to discovery documents, Judge Grimm observed: [i]n 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 party 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.... Further, because privilege review and preparation of privilege logs is increasingly handled by junior lawyers, or even paralegals, who may be inexperienced and overcautious, there is an almost irresistible tendency to be over inclusive in asserting privilege/protection.... [t]he experience of many judges is that when the documents themselves are reviewed, it often turns out that a much smaller percentage of documents actually meet the requirements of the asserted privilege/protection than was claimed by the asserting party.... Requesting parties also know of the limited utility of privilege logs (for they likely have served similar privilege logs in response to their adversary s discovery requests), and thus, when they receive the typical privilege log, they are wont to challenge its sufficiency, demanding more factual information to justify the privilege/protection claimed. This, in turn, is often met with a refusal from the producing party, and it does not take long before a motion is pending, and the court is called upon to rule on the appropriateness of the assertion of privilege/protection, often with the producing party s magnanimous offer to produce the documents withheld for in camera review. In camera review,

9 however, can be an enormous burden to the court, about which the parties and their attorneys often seem to be blissfully unconcerned. Id. at 265. Thus, advised Judge Grimm, to insure that a privilege or protection claim is properly asserted and to avoid unnecessary discovery battles, a party asserting a privilege/protection must do so with particularity by identifying the document withheld, information regarding the nature of the privilege/protection claimed, the name of the author and recipient of the communication, the date and place of the communication and its general subject matter. Id. at ; accord SEC v. Collins & Aikman Corp., 2009 WL (finding the privilege log produced by the SEC deficient where [it] provided [plaintiff] and the Court with no more useful information than the type of document (a memorandum), the addresses (various SEC staff), and the subject matter (Issue 00 25, a policy statement superseded by Issue 01 09, the subject of Request 33)). 6. In camera review of purportedly privileged information should be a last resort. Judge Grimm put to rest any confusion about the courts preference with respect to mediating discovery disputes when he advised, It should go without saying that the court should never be required to undertake in camera review unless the parties have first properly asserted privilege/protection, then provided sufficient factual information to justify the privilege/protection claimed for each document, and finally, met and conferred in a good faith effort to resolve any disputes without court intervention. Victor Stanley, 250 F.R.D. 251 at 266. Implicit in this statement is the notion that if counsel fulfill their duties under the court rules to stop and think before responding to discovery and to cooperate and communicate with opposing counsel, court intervention regarding discovery conflicts will be unnecessary. 7. Compliance with the Sedona Conference Best Practices for Use of Search and Information Retrieval is Relevant to Determining whether a party s method for searching electronically stored information was reasonable and reliable, and thus whether attorney client privilege or work product protection was waived following inadvertent production. In Victor Stanley, Judge Grimm had to resolve whether defendants inadvertent production of 165 ESI documents containing attorney client and work product privileged material resulted in waiver of the privilege/protection. Per court order regarding the parties discovery impasse, the parties computer forensic experts met and conferred in an effort to identify a joint protocol to search and retrieve relevant ESI responsive to plaintiffs Rule 34 requests. The protocol prepared contained detailed search and information retrieval instructions, including nearly five pages of keyword/phrase search terms. The search terms were aimed at locating responsive ESI, rather than identifying privileged or work product protected documents. After the protocol was used to retrieve responsive ESI,

10 defendants reviewed it to locate documents that were beyond the scope of discovery because of privilege or work product protection. Based on the short timeline for reviewing the documents and the concern of defense counsel of inadvertent disclosure of privileged/protected documents, defendants requested a clawback agreement from the court (a clawback or quick peek agreement is a non waiver agreement agreed to by the parties and ordered by the court). In response, the court issued a letter order requesting additional briefing by the parties regarding the burdens associated with conducting a privileged review of the information to be produced in the time frame required by the discovery schedule in the case. Later, defendants counsel notified the court that because the judge recently had extended the discovery deadline, defendants would be able to conduct a document by document privilege review, thereby making a clawback agreement unnecessary. Thereafter, defendants conducted their review for privileged and protected documents before the ESI productions were made to plaintiff. After the joint ESI search protocol was implemented and the responsive ESI identified, defendants computer forensics expert determined that there were some ESI files that were in text searchable format and others that were not. She conducted a search for privileged material on the text searchable files using keywords developed by counsel. As to the nontext searchable files, she produced them to counsel for privilege review. Defense counsel reviewed each of the files identified as privileged/protected by the expert based on her keyword searches. As to the nontext searchable files, because of the compressed schedule and time constraints in reviewing these tens of thousands of documents, defense counsel simply reviewed the page titles of the documents. Documents whose page titles indicated that privilege might be applicable were reviewed in their entirety by defense counsel. The Court applied the intermediate test to determine whether the inadvertent disclosure resulted in waiver of attorney client privilege and work product protection. The intermediate test requires the court to balance the following factors to determine whether inadvertent production of attorney client privileged materials waives the privilege: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice. Id. at 259 (citing McCafferty s, Inc., v. Bank of Glen Burnie, 179 F.R.D. 163, 167 (D.Md. 1998)). The Court concluded that defendants had waived attorney client privilege and work product protection because they had failed to take reasonable care to prevent disclosure of privileged and protected information. Defendants, who had the burden of proving that their conduct was reasonable for purposes of assessing the waiver issue, failed to demonstrate that the keyword search they performed on the text searchable ESI was reasonable. They did not identify the keywords selected nor the qualifications of the persons who selected them to design a proper search; they failed to demonstrate that there was quality assurance testing; and when their

11 production was challenged by the plaintiff, they failed to carry their burden of explaining what they had done and why it was sufficient. Id. Further, the Court found disingenuous defendants attempt to justify their actions based on the volume of ESI and time constraints at issue where defendants, aware of the danger of inadvertent production of privileged/protected information, initially sought the protections of a non waiver agreement but ultimately abandoned it. Id. at 260. As guidance for future litigants needing to convince the court of the reasonableness and reliability of a chosen method of search and information retrieval, the Court recommended compliance with the Sedona Conference Best Practices, inter alia: Practice Point 3. The choice of a specific search and retrieval method will be highly dependent on the specific legal context in which it is to be employed. Practice Point 4. Parties should perform due diligence in choosing a particular information retrieval product or service from a vendor. Practice Point 5. The use of search and information retrieval tools does not guarantee that all responsive documents will be identified in large data collections, due to characteristics of human language. Moreover, differing search methods may produce differing results, subject to a measure of statistical variation inherent in the science of information retrieval. Practice Point 6. Parties should make a good faith attempt to collaborate on the use of particular search and information retrieval methods, tools and protocols (including as to keywords, concepts, and other types of search parameters). Practice Point 7. Parties should expect that their choice of search methodology will need to be explained, either formally or informally, in subsequent legal contexts (including in depositions, evidentiary proceedings, and trials). The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E Discovery, 8 SEDONA CONF. J. 189, Conclusion The collective message of the federal court decisions discussed above is that, when it comes to discovery, counsel can no longer get by doing what they have always done. No longer is it acceptable to justify non cooperative tactics on the basis of a lawyer s duty of zealous advocacy on behalf of their client. As Judge Grimm observed: However central the adversary system is to our way of formal dispute resolution, there is nothing inherent in it that precludes cooperation between the parties and

12 their attorneys during the litigation process to achieve orderly and cost effective discovery of the competing facts on which the system depends. Mancia, 253 F.R.D. at 361. By connecting the duties of cooperation and communication to the Federal Rules of Civil Procedure, the judges in these cases make it clear that what lawyers have always viewed as a tactical option is actually a mandate. * Megan Pedersen and Bob Manlowe are attorneys in the Seattle offices of Williams Kastner. Williams Kastner s ESI specialist attorneys have years of experience with ESI and substantive areas of law including mass torts, complex litigation, class actions, product liability, pharmaceuticals, toxic torts, labor & employment, commercial litigation, corporate law. In addition our attorneys have vast experience as national coordinating counsel and in crisis management and media relations. The fusion of our expertise along with our practical approach to our clients business needs set us apart from our from our competitors. Contact Williams Kastner s E Discovery/E Document Management team at ; bmanlowe@williamskastner.com. is Senior Legal Counsel at Physio Control.