State Bar's annual UCL conference: Judge Kramer's remarks

A belated thanks to everyone who attended the State Bar's annual UCL conference last week! I thought it was a great conference and I enjoyed meeting so many of the attendees.

San Francisco Superior Court Judge Richard A. Kramer was the keynote luncheon speaker, and his remarks were some of the most interesting of the day. Judge Kramer has graciously given me permission to share my notes of his comments by posting them here. He spoke on three topics: (1) how to organize UCL cases; (2) discovery of putative class member information; and (3) e-discovery.

UPDATE: This post has been updated to correct a couple of errors pointed out by Judge Kramer. My apologies.

How easy UCL cases are and how to organize them

Step 1: Pin down the business practice being challenged.

• Usually the attorneys can do this themselves; sometimes it appears in the complaint; sometimes they need help. Try to get a stipulation on this point.

Step 2: "So what?"

• Is it unlawful, deceptive or unfair? Or is it what makes America great? Get the plaintiff to say what's the problem here. What's wrong with it?

Step 3: How many people are they doing it to?

• Who is it that allegedly got hurt by this? Is it a class action?

• Do we have the right people before the court to complain about this? (Standing)

The parties can agree on whether #3 or #2, above, comes first. For example, will the standing question really be determinative, or is it just a step along the way because new plaintiffs will come in? Will defendants waive the res judicata/collateral estoppel problem or will class issues have to be decided first?

Step 4: What do you want me to do about it? In other words, what are the remedies? I like to do this one last.

• The toughest discovery questions come up here. Why did you do this? Are you going to keep doing it? Do you really need the court to tell you to stop it? How much did you get by doing it?

• Many discovery disputes can be avoided by putting this last. There are very few discovery disputes on what the practice is (step 1). There are none on "so what?" (step 2). Some issues come up on standing and class certification (step 3). Everyone switches their positions on burden when you get to the last stage.

• Often parties work it out by the time you get to step #4.

Conclusion: Have a structure. Have things proceed in a logical sequence. Do your discovery in a logical sequence.

Discovery of putative class member information

There is no law on this no definitive law on this yet other than it is within the court's sound discretion. All of the cases are mis-cited to me. All of the cases are "abuse of discretion" cases. Pioneer Electronics is mis-cited every time. It relates to general evidence (not class evidence) and approved the application of an abuse of discretion standard of review. Best Buy involved a goofy procedure.

Very few cases recognize the distinction between discovery to investigate the merits vs. discovery to find a new plaintiff. The standards for these two things will be different.

The developing rule is as follows: If the plaintiff never had standing, he/she can't get discovery. If plaintiff lost standing, then (maybe) the plaintiff can get discovery. No case has established an absolute right.

Best Buy may have been wrongly decided. The trend in the cases seems to distinguish between disqualified plaintiffs who never had standing from those who had standing at the time of filing the lawsuit but then lost it due to some extrinsic happening (e.g. Prop. 64). Under that dichotomy, since Best Buy's plaintiff (the lawyer in the case) never had standing, maybe the result would be different.

This issue may stay within the realm of judicial discretion. More guidance is anticipated. I see attorneys' arguments on this point getting better and more nuanced.

E-Discovery

Qualcomm [phonetic] is not an e-discovery case, period. Attorneys knew about documents and withheld them from the court. The outcome would be exactly the same if the documents were stone tablets.

The differences between e-discovery and the days when documents were stored in a warehouse in Stockton are not that significant:

1. Indexing systems are better now.
2. "Any and all" doesn't exist anymore because there's too much stuff.
3. Judges are better suited to think about what you need, not what exists.

Other than that, everything's the same. The court is to balance the burdens against reasonable needs and come up with a solution.

I never believe people who say "that's impossible." Two reasons: (1) You're not an IT expert. (2) You've been told this through a chain of people who don't know.

The solution: "Bring your geek to court." I have "Bring Your Geek to Court Day." "Your Geek" is not the head of the IT department. He's the guy you go to when something isn't working and he fixes it for you.

You ask that person how do we get this done? And they come up with ideas. Do it incrementally. See what this gets us, and then do the next step.

The only thing better than "Bring Your Geek to Court Day" is "Both sides bring your geeks to court" and go in the back and figure it out. They come out with a really good start.

Judge Kramer had to run back to court after that because he was in trial, but he left us with a huge amount of useful information, and my notes do nothing to capture his delivery. I look forward to hearing him speak at future conferences.