My Experience Addressing the CA Supreme Court on eDiscovery

by Alexander Lubarsky, Esq.

I thought I must have been hearing things. “Who is this… did you say Supreme Court? As in ‘The’ Supreme Court, sir?” “Nah,” said the stranger on the other line, “just the California Supreme Court – and all of their research attorneys as well as the District Court judges and their research attorneys.”  

CA Supreme Court

“So, let me get this straight, you are saying that you want me to address them on the topic of e-Discovery? Are you sure you’re reaching out to me instead of George Socha or Robert Brownstone? Is this some kind of practical joke? Did Bil Kellermann put you up to this? How did you get my number?” I envisioned Bil listening in on some muted line trying to control his snickering or perhaps a back room full of my co-workers at TERIS rolling on the floor knee-slapping over this zinger. But this was no joke. The California Supreme Court administrator growing impatient with me on the other line was no hallucination. Due perhaps to some strange alignment of the stars, the Court had targeted me to address the Appellate Courts at their annual retreat. “I have no idea who those folks are” muttered the voice, growing a bit impatient. “Look, I read an article you wrote some years back on metadata preservation and for whatever reason, I saved it and I was tasked with finding a speaker on this here, … electronic discovery… I dug up my press clippings and found your number. I have reason to believe you know a thing or two about it.”

Slightly trembling, I belted out… “Sir, you can count me in!”. “Great. But you can call me Phil, I’ll mark you down. You’ll be speaking with a partner at Farella, Braun – Tony Schoenberg – know him by chance?” “Can’t say that I do, but it will be great to meet him. How did you end up selecting him?” “He wrote an article that was clip-worthy too!,” chuckled Phil.

So, that was it. I was to speak before the folks that interpret the law of the State of California and deliver to them their first full presentation on electronically stored information – technology, rules, issues, trends and themes. I was later advised that I was the only service provider invited to speak at the event. I was told that my presentation would follow some remarks by Supreme Court Justice Ming Chin. I had not been so star struck since I won a radio contest to meet Klaus Meine, lead singer of The Scorpions, backstage at the Shoreline a few years back. “I’ll rock them like a hurricane,” I thought to myself as visions of black robed justices jostled their way up to the front row all the while fist pumping and clutching their lighters for the ballad portion of the presentation.

Within a few weeks, I sobered up a bit and realized that dealing with the Appellate Courts is no less daunting and demanding for a featured speaker as it is for a litigant. It seems that strict rules and guidelines for filing appellate briefs is not the only painstaking protocol they have put into place. The judiciary is just as demanding of its guest lecturers as I was soon to discover.

A few weeks later, I would be on the phone nearly every other day with my co-speaker Tony – a very bright guy who seemed surprisingly young to be a seasoned partner at a top tier law firm. “Tony, did Phil call you too asking if we could change the font size in slides 16 and 32?” “Not only that, said Tony, “but his assistant called to request we include a Cal. Supreme Court Case that one of the Justices thinks may be relevant to our topic.. After much revisioning, the Judicial Council asked Tony and me to create a ‘glossary’ of the ESI related terms referenced in our PowerPoint slide deck. Each entry in our glossary was scrutinized judiciously so I appointed one of my e-discovery students, Howard Weiss, from the Cal State East Bay’s Paralegal Program to cross check our glossary entries against several seminal e-discovery practice guides and other reliable sources. After some reworking, we finally got the glossary up to the court’s high standards.

Then came the day that we had turned in yet another “final,” final version and did not receive the usual request to change a piece of it.

I arrived early at the event and proudly displayed my ‘Speaker’ name badge across my chest. I pranced around like a peacock sneaking glances at the attendees – hoping for a (judicial) star sighting. “Is that Justice Baxter drinking coffee with Justice Tani Cantil-Sakauye?” I whispered to the person in front of me. “Beats me,” replied the greying rotund man as he looked at me quizzically… ‘I’m here to repair a vending machine.”

I decided to duck into a few speaking sessions. There were many interesting topics to choose from: “Addressing Self-Represented Litigants in California,” “Adjudicating Complex Appeals,” “Recent Developments on the Evidentiary Limits of Expert Testimony.” I chose to attend “Conduct Unbcoming: Prosecutorial Misconduct.” I walked in late to the standing room only session and watched controversial Santa Clara County District Attorney, Jeff Rosen, who I had only before seen on local television news stories, squirming in the hot seat trying to defend his Assistant District Counsels who had been accused of mishandling exculpatory evidence, knowingly promoting erroneous jury instructions, divulging incriminatory evidence to a jury despite the judge’s order not to do so, and awarding his prosecutors a controversial paid time off on the taxpayer’s dime. Mr. Rosen was literally squirming as the judges and research attorneys in the audience recounted reading several appellate records revealing prosecutorial misconduct. ‘I’d prefer you refer to it as an ‘error’ and not as ‘misconduct’,” said Mr. Rosen over and over. Better than Maury Povich!

Finally, my presentation was on deck. I peeked at the registration list of forty or so folks and began to tremble a bit as I scanned the attendees’ employers:  Fourth Appellate District; Second Appellate District; California Supreme Court; Los Angeles County; Sixth Appellate District and so on. One of the participants waved me over to him as he took his seat – “I hope you will discuss juror misconduct by use of social media. That’s on your agenda isn’t it?” “It may not be on a slide in Powerpoint,” I responded, “but I certainly plan to talk on that theme. If you’ll excuse me, just one second” I bounced out of the room, looked at my watch – five minutes until showdown. I called my friend, John Patzakis, who founded a company that monitors and forensically harvests social media feeds – X1 Discovery. Fortunately, I had John on speed-dial. “John, long story short but I’m speaking to the Appellate Courts in five minutes, what do you know about social media monitoring amongst the jury pool?” To my delight, John’s company had recently been retained by several courts for just that purpose and John was able to spit out a primer on the topic just in time for me to regurgitate it minutes later and watch the jaws drop in unison.

Tony and me took some last looks at our notes, adjusted our neckties, fist pumped one another and started in on our presentation. We displayed the ubiquitous EDRM model and surveyed the audience as to how many folks were familiar with it. Not a single hand went up. “We’re definitely not at ILTA” I thought to myself. Then a hand went up – “I heard one of you mention something called metadata, what is that?”

The audience, although not tech-savvy per se, proved to be friendly, engaged, attentive and asked some very poignant and thought provoking questions about admissibility of e-mail and social media and how misunderstanding of data use and management may result in reversible judicial error. Refreshingly (and not surprisingly) there were no questions about costs or workflow as such crucial factors for litigators and even trial judges are non-issues for the academic-bent appellate judiciary. They may have proven slightly on the ‘non-tech’ bent, but they were razor sharp when it came to the bigger picture. Tony and me would present slides on case law, there would tend to be more than the usual amount of banter about the reasoning behind the holding. Appellate judges critiquing appellate judges. We wrapped up our last slide just as our session was set to close. The presentation was near flawless, or so it seemed to me. Tony and me gave each other a celebratory high-five and were humbled by roaring applause and then mobbed with attendees asking questions and wanting to chat more.

After the lecture, I was invited to stay for lunch. The word got out that I was the (lone) ‘computer guy’ at the retreat and research attorneys and judges from all over the state approached me wanting to learn more about the litigation technology in general, and ESI rules and trends in particular. When it came time to choose a table for lunch, a small scuffle broke out among three tables all wanting me to sit with them to talk tech – a somewhat surreal and ego-bolstering phenomenon that does not happen at litigation support industry events, where I am just one of several dozen ‘pesky’ vendors who is often shunned more frequently than embraced. I felt like a rockstar (eat your heart out, Klaus Meine). The court judges and attorneys proved to be all around ‘class A’ folks and I have forged some new friendships that I hope will endure among the fine folks I met at the retreat.

A few days later, I received a very nice thank you letter from the court on the Chief Justice’s own letterhead. I will probably frame it and show it off to the point where I am again accused of being a hopelessly arrogant.

Despite the painstaking efforts required to meet the Appellate Court’s high expectations from its lecturers, the over-planning and stressful preparation paid off and I’m angling for an invite in 2014.

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