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July 14, 2009

E to the F Power

Fees Along with Ralph Losey, Tom O'Connor and other commentators, I've painted many a pixel importuning lawyers to learn the ways of electronic discovery.  Between us, we've variously employed the "M" word (malpractice), the "E" word (ethical duty), the "C" word (competitive advantage) and the "S" word (sanctions).  I don't know that any of us have gotten much traction.

But now a court has used the "F" word...the one that really grabs lawyers by the short hairs: fees

In an employment law case out of the Western District of Washington called Chen v. Dougherty, No. C04-987 MJP WD WA  (July 7, 2009), prevailing plaintiff's counsel sought a fee award at the rate of $300.00 per hour.  So, why did the court only award a fee of $200.00 per hour?

Per Judge Pechman, Plaintiff's counsel's "inhibited ability to participate meaningfully in electronic discovery tells the Court that she has novice skills in this area and cannot command the rate of experienced counsel."

Ooh, that's got to hurt.

So if all the other compelling reasons to get your arms around e-discovery haven't grabbed you, then try this one:  If you're facile at e-discovery, your services command a hundred bucks more an hour.  If you're not, you need to charge a third less.

So, what's an extra hundred bucks an hour mean to your bottom line?


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When I lived in Seattle I had the pleasure of working on several cases in the U.S. District Court for the Western District of Washington and I must say that the judges there have been pushing the envelope in the electronic document realm for years with little publicity. Judge Pechman presided over the Znetix case ( ) in 2003-04 and as a result of the large number of electronic document issues presented during that matter, she instituted a Technology Working Group in 2005 to set some agreed upon standards for electronic document exchange between the U.S. Attorney and the U.S Public Defender. I had the distinct privilge of being asked to serve on that group which was highly prescient of the concepts enumerated years later in the Sedona Cooperation Proclamation.

Judge Robert Lasnik of that court made Ralph Loseys list of Must Read Decisions in 2008 for his opinion in Mikron Industries Inc. v. Hurd Windows & Doors, Inc., (2008 WL 1805727 (W.D. Wash. Apr. 21, 2008) in which he set forth some clear standards for cost shifting as well as cooperation in the collection process. Judge Lasnik also presided over the prosecution of the Hells Angels Motorcycle Club in 2007 (U.s. v Fabel et al, Case No. CR06-041L) in which I participated. Judge Lasnik approved over $2 million in funds for what he later described as a “high quality defense” effort which included the use of a web based document repository and the exchange of evidence electronically with the prosecution.

Several other cases in the that court have used similar technology as well as the shared cost of scanning documents by both parties. The handling of technology in these cases is often under the supervision of Magistrate Judge Mary Alice Theiler and appointed defense counsel in these matters are typically handled by a coordinating counsel from the Public Defenders CJA Panel, most commonly Atty Russ Aoki of Seattle, who worked on both the Znetix and Fabel cases.

Too often we think that electronic discovery decisions come from only a handful of judges but as Craigs column points out, many courts around the country are on top of these issues. In the case of Seattle, my experience is that they’ve been on top of them for quite a while.

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